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^ HOUSE .... No. 3. 



(EommontDealtl) of ilTa00ai:l)US£tt0. 



REPORT 

OF THE 

COMMISSIONERS OF FISHEEIES. 



To His Excellency the Governor and Honorable CounciL 

The Commissioners of Fisheries, appointed under chapter 
238 of the Acts of 1866, beg leave respectfully to report their 
doings since the date of their appointment. 

Plans were first drawn for fish-ways over the dams at Lowell 
and at Lawrence ; and these plans have received the official 
approval of Messrs. H. A. Bellows and W. A. Sanborn, 
Commissioners for New Hampshire, (section 3 of the Act,) 
and copies have been furnished respectively to the Proprietors 
of Locks and Canals at Lowell, and to the Essex Company at 
Lawrence ; and other copies have been filed in the office of the 
Secretary of the Commonwealth, with an affidavit, as provided 
by section 4 of the Act. 

The fish-way at Lowell, now very nearly finished, has been 
constructed and will be maintained entirely at the expense of 
the company. It is cf the kind Itnown as the double stair ^ 



i 



:^ — 

2 ON THE PASSAGE OF FISH. [Jan. 

that is to say, two parallel lines of tanks, joined side by side, 
each one lower than the one above it, whereby the water passes 
through each in succession and reaches the foot of the fall by 
making a series of right angles. [See plate.] These tanks 
are over twelve feet square and are strongly built of masonry 
and heavy timber ; and it is hoped that they will resist the ice 
and the freshets. The fall from each tank to the one below is 
one foot ; and there are nine tanks, making a total fall of ten 
feet, including one foot from the dam into the first tank. At 
the foot of the stair a pool, twenty feet in diameter and three 
feet deep, connects immediately with the main channel of the 
river. This fish-way is intended more particularly for times of 
low water, though there is no reason why it should not work 
well in high water ; when, however, the fish can rush up the 
outer slope of the dam, near the place where it makes an 
angle not far from the Dracut shore ; and it is the intention of 
the Commissioners (under authority of section 12 of the Act,) to 
keep free from flashboards, if need be, a place ten feet wide at 
this spot, during very high water. 

The pass adopted for the Lawrence dam is pretty much that 
of which a drawing is given in a former report,* except that 
instead of the flood-gate and head for regulating the water, 
a drawbridge has been substituted. This drawbridge is a 
trough, connecting the crest of the dam with the upper end of 
the pass. The sides of this trough are of a certain height and 
it conveys, therefore, a sheet of water of that height into the 
pass, and no more. In winter it is hoisted and the danger 
from ice is thus much diminished. The pass itself is an 
inclined trough, twelve feet wide, with a fall of one in ten. 
Cross-bulkheads, inclining up-stream,t are inserted at intervals 
to check and turn the current ; and there are moreover, resting- 
tanks, where the fish may pause in their ascent. This structure 
is built in the most massive manner, with great timbers and 
heavy plank, bolted together. The lower part is blasted out 
of the ledge. This strength is necessary because of the almost 
resistless force of the ice brought down by the spring freshets. 
The estimated cost of this pass, which will be done before 

* Senate Doc. No. 8, 1866. 

t On the pr:ucip',o of Mr. X. Y\. Foster, of- East Matjhias', Me. 



6 35AB 

1867.] HOUSE— No. 3. C7^^ ^ 

winter, is |8,500. The Essex Company, ift 'commutation of 
the useless fish-way it was obliged by law to maintain, has 
agreed to pay |3,500 toward the first cost of this new fish-way, 
and to pay one-half the expense of maintaining the same for 
the term of five years from the passage of the Act. The 
remainder of the cost of construction and maintenance is to be 
paid by the Commonwealth. 

Availing themselves of the discretion allowed by the 13th 
section of the Act, the Commissioners have not yet begun fish- 
ways over the dams on the Connecticut. At its last session, 
the general assembly of Connecticut authorized the governor 
to appoint two commissioners " to consider the subject of the 
protection of sea-fish in the Connecticut river ; " and Messrs. 
J. H. Trumbull and W. H. Goodspeed have been appointed, 
under this Resolution. Doubtless, by their recommendation, 
the State of Connecticut will give such guarantees of assistance 
as will warrant Massachusetts in putting up fish-ways at 
Holyoke and at Turner's Falls. At the latter place a new dam 
is now building, but the proprietors have been duly notified 
that they will probably be soon required to make a suitable 
fish-way, which would, of course, be at their own expense. 
The precise rights of the Hadley Falls Company (at Holyoke,) 
have not yet been brought to arbitration, but there can be 
little doubt that the Commonwealth would have to bear a part 
of any expenses there incurred. If the State had to bear all 
the expense, it would be considerable ; because, not only must 
the fish-way be paid for, but perhaps damages alcso, to the 
company for their water, and to the abutters for their land. 
The cost of this fish-way could scarcely be less than of the one 
at Lawrence, which will be not far from |9,000. In a former 
report* the cost of the fish-ways at Lowell, Lawrence and 
Holyoke was estimated at 122,000, exclusive of damages that 
might be paid to the Hadley Falls Company. Those at 
Lawrence and Lowell, now almost finished, will together cost 
from 111,000 to $12,000, leaving about 110,000 of the estimate 
to be applied to Holyoke. The amount voted by the Common- 
wealth (section 14 of the Act,) was $7,000, and of this there 
will be very little, if anything left by next spring. 

* Senate Doc. No. 8, 1866, p. 29. 



4 ON THE PASSAGE OF FISH. [Jan. 

If fish-ways were put up on the Connecticut, a good deal of 
assistance in the breeding of young salmon might be looked 
for from the State of Vermont, whose Commissioners, Messrs. 
A. D. Hager and C. Barrett, have submitted an excellent 
report, containing, among other things, one of the best essays 
on artificial trout-breeding that can be found anywhere. 

The Commissioners of New Hampshire have succeeded in 
procuring from New Brunswick, 15,000 or 20,000 salmon ova, 
which have been planted in good condition in the waters of 
the Pemigewasset. These ought to hatch next spring, and a 
portion of the young " smolts '' would be ready to go down 
to the sea in the early summer of 1868. In May, 1869, when 
the apple trees are in full blossom, we should have our first 
run of " grilse " or half grown salmon. In May, 1870, the 
mature fish ought to come up the river, the females full of 
eggs and ready to seek their autumnal spawning-beds in the 
mountain waters of New Hampshire. But there will be no 
mature fish to come, or grilse, or smolts, or anything else, and 
the money of the State, spent for fish-ways will be as good as 
thrown into the river, unless proper laws be passed and enforced 
for the protection of the fish. In some parts of Maine it has 
been the custom to forbid all fishing for Jive years in a river 
that was to be re-stocked. With salmon and alewives this 'has 
worked well. The fish are at first few in numbers and timid 
in their migration, but, being unmolested for some seasons, 
they become numerous and bold, and at last penetrate into all 
parts of the river and its tributaries. In order to insure 
success in a river that has been entirely depopulated, some fish 
must be carried above its dams and there allowed to breed. 
Their progeny will next year surmount the dams, by the fish- 
ways, and return to their breeding grounds. In this way the 
Commissioners propose, next year, to carry a number of 
shad from below the Lawrence dam to the mill-pond above. 
Not only the time of taking fish, but the manner, should be 
regulated by law to the exclusion of all seines more than one 
hundred yards long, and all weirs and gill-nets. 

The New Hampshire law requires that the chief tributaries 
of the Connecticut and Merrimack should be opened, as well 
as the main rivers, as soon as free passage is efiected through 
the States lying between New Hampshire and the sea. And it 



1867.] HOUSE— No. 3. 5 

would seem proper that the Commissioners should be empow- 
ered, at their discretion, to notify proprietors of dams on the 
tributaries of these two rivers within this Commonwealth, to 
build fish-ways over these obstructions. Another power which 
should be given to the Commissioners, or should be incorpor- 
ated in an enactment, is that of imposing penalties for fishing 
within four hundred yards of any fish-way, or for trespassing 
upon the prescribed limits of the fish-way itself. Such offences, 
at present, would come under the law of trespass, which could 
inflict no adequate penalty. These may seem vexatious details ; 
so, also, hoeing potatoes is a vexatious detail, but it has a good 
deal to do with tlie crop. 

As to the river pollutions, which, next to dams, are the chief 
destroyers of fish, it would be difficult so to frame an enact- 
ment as to meet all cases without doing injustice to many 
manufacturers. Still, something should be done about it ; for, 
even though section 6, chapter 166, Revised Statutes, 1860, 
may be considered here to apply, it, at any rate, is not enforced. 
The specific effect of the pollutions thrown into the Merrimack 
by the great Pacific Mills at Lawrence has been corroborated 
by the investigations of the present season.* Many attempts, 
with a fine seine, to catch young shad in the neighborhood of 
these mills, even on the opposite side of the river, failed 
entirely; although specimens were always to be procured a 
little further down, where the water is pure. 

It has been ascertained definitely, that the young fish do not 
remain in the river after the end of September, when they 
have attained a length of about four inches, [see plate,] and 
resemble the adult in form, but have not yet the lateral line of 
dark spots behind the head, which may be seen in the adult 
after the scales have been removed. The young taken in 
August show an extraordinary difference in size [see plate,] 
which goes to confirm the statement of the former Report* 
that the spawn is deposited at different times by different shoals 
of fish, and that, therefore, the broods of young will be more 
or less grown according to their ages. An examination of the 

* At the suggestion of the Commissioners, this company is going to put a plank fence 
opposite each of their race-ways, which, doubtless, will prevent the pollution thence of 
the river. 

* Senate Doc. No. 8, 1866, page 6. 



6 ON THE PASSAGE OF FISH. [Jan. 

stomach of a young shad showed that the food was chiefly 
certain minute water-beetles, together with a few mosquito-like 
insects which they probably spring at, like the trout. There 
were, mingled with these, some fresh water algae such as 
compose the green scum on pools, but this vegetable matter 
may have been accidentally swallowed. 

In conclusion, the Commissioners beg leave to submit the 
following recommendations : — 

1. That the sum of ten thousand dollars be appropriated 
for the ensuing year. ' 

2. That fishing with the seine, and taking of shad, or 
salmon, in any manner, be forbidden in the Merrimack River 
above the Lawrence dam until April 15, 1871, under the 
penalty of forfeiture of the seine, and of five dollars for every 
shad taken, and of fifty dollars for every salmon taken. 

3. That fishing with the seine and taking of shad, or 
salmon, in any manner, be forbidden in the Merrimack River, 
below the Lawrence dam, from April 15, 1868 to April 15, 
1870, under the same penalties. 

4. That the Commissioners be allowed to take such fish as 
may be required to re-stock the river. 

5. That a fine, not exceeding fifty dollars, be fixed, 'for 
fishing within 400 yards of any fish-way, or for trespassing 
within the prescribed limits of the same. 

6. That the Commissioners be empowered, at their discre- 
tion, to cause any tributaries of the Merrimack, or of the 
Connecticut to be opened to the passage of shad and salmon, 
by directing the proprietors of dams on such tributaries to 
build suitable fish-ways over their dams. 

All of which is respectfully submitted. 

THEODORE LYMAN, 
ALFRED R. FIELD, 

Commissioners, 

November 30, 1866. 



Fig: 3 




.(;L(IljLX.:L gn: 




Fi-. 




Fi^. 2 



1867.] HOUSE-.No. 3. 



DESCRIPTION OF THE PLATE. 

Figs. 1, 2 and 3. — Young shad ( alosa praestabilis,) before tbey have left the river, for the 
sea. Natural size. Fiffs. 1 and 2 show the differences in size in the different 
broods at the same date ; August 14. Fiff. 3 is a young fish just ready to go 
down to the sea ; September 26. 

Fig. 4. — Diagram of the double Fish-stair, at Lowell, showing the arrangement of the 
tanks and the course of the water. The tanks are somewhat over twelve feet 
square and about two feet deep. The fall from each tank to the next, is one 
one foot. "With 2 feet and 4 inches of water on the dam-crest, a floating body 
moved down the current of this fish-stair with an average speed of less than 
two miles an hour, c, the dam. 

Fig. 5. — Diagram, to show how the width of the sheet flowing into the first tank, is 
regulated by flasliboards (b) placed on the dam (c.) 

Fig. 6. — Profile of Foster's fish-way showing the trough or pass (d) sloping from the dam 
(c) to the river-bed. e, the water-line, below the dam. 

Fig. 7.— Plan of Foster's fish-way showing the up-stream slant of the cross-bulkheads 
(/) and the course of the water, c, the dam. g, the flood-gate. 

Fig. 8. — Flood-gate of Foster's fish-way, seen from the face of the dam (c) ; a a, pieces 
of scantling, which may be removed to increase the volume of water. This 
fish-way is particularly adapted to small streams, because it uses little water. 
In the absence of any experiment, there is some doubt whether shad will 
freely pass through so narrow an opening as this plan shoAvs ; but alewives 
and salmon will. The cross-bulkheads are made as high as the sides of the 
pass, so that the water runs deep. Fiffs. 6, 7 and 8, are drawn on a scale of 
20 feet to an inch. 



r" 



HOUSE ^ No. 60. . 

REPORT >) '^ V 



COMMISSIONERS OF FISHERIES, 



FOR THE YEAR ENDING 



JANUARY 1, 1868. 



BOSTON: 

WRIGHT & POTTER, STATE PRINTERS, 
No. 4 Spring Lane. 



1868. 



€oiniiiomucnItl) of ilTn55atl)U5dt5. 



REPORT 



To His Excellency the Governor and Honorable Council. 

The Commissioners of Fisheries, appointed under chapter 
238 of the Acts of 1866, beg* leave respectfully to present their 
Second Annual Report. 

The fish ways at Lowell and at Lawrence, as had been hoped, 
were finished, and the water let on, last spring ; and thus the 
Merrimack was once again opened, after being closed for eigh- 
teen years.* Although the violent current could not be at once 
regulated in tlie long fishway at Lawrence, it is gratifying to 
know, that, notwithstanding this unfavorable circumstance, 
salmon passed over this dam, and over that at Lowell, and 
were taken early in June near Nashua in New Hampshire. It 
seems therefore reasonable, that the five years "jubilee" 
allowed by law to this river, assisted by artificial breeding, 
should make fish abundant therein. 

Shad also appeared at Nashua, but it is not certain that these 
actually surmounted the Lawrence fishway, for about five hun- 
dred were, by order of the Commissioners, carried above the 
Lawrence dam; a difficult operation, because, this fish, like 
most of those with loose scales, is extremely tender, and sur- 
vives neither confinement nor rough handling. They were 

*The time that these passes were kept open, during the season, was from April 25th to 
July 1st, with a full depth of water; and from August 25th to October 1st, with not less 
than four inches of water. The Lowell fishway has been approved by the Commis- 
sioners ; that at Lawrence needs a little more regulation. 



4 RIYER FISHERIES. [Jan. 

taken with the seine about two miles below the dam ; were at 
once put into a tank of cold well water, and carried in a wagon 
to the mill pond, where the wagon was backed into the river, 
and the fish speedily liberated. All attempts to transport them 
long distances failed ; but it is yet possible that this might be 
done by icing the water till the fish was nearly paralyzed.* 
Just as a trout laid on moist snow will live for hours, though 
it would speedily die if exposed to a warm sun. In addition 
to those which were thus artificially transported, it is probable 
that a few passed up the fishway, because fishes, resembling 
shad or alewives, were seen going up. That eels found no diffi- 
culty was quite plain when the water was drawn off, and the 
whole floor of the pass was found to be alive with them, great 
and small. Like unwelcome guests they came many and 
early, and ready to devour all the spawn of useful fishes 
that they could find. 

New Hampshire has completed the work on this river, by 
putting ways on all the important dams within her borders ; 
and the experiments there have fixed the conclusion that 
" Foster's fishway," described and figured in the last Report, is 
by far the cheapest, simplest and most effective of those now 
known. (Plate III., figure 4 ; also Report for 1866, figures 
6, 7, 8.) It is only where the space is limited that the box- 
way, or double stair, like that at Lowell, is desirable. f 

The salmon ova, planted last autumn in the Pemigewasset, by 
order of the New Hampshire Commissioners, are thought to have 
done well ; and the young parrs have been seen this autumn by 
Dr. William W. Fletcher, of Concord, who had this service in 

* A very good tank for transporting live fishes is the one used by Mr. Francis Davis, 
of Keene, N. H. It is 2 ft. 6 in. long, and 2 ft. 3 in. high, and is made of staves 
sloping inward like those of a churn. Through the cover is inserted a little pump by 
which the same water is aerated by pumping over and over. (Plate III., figure 6.) 
T^ithin is an ice basket to keep down the temperature. The tank used to carry up the 
shad was a simple box, with a slat cover, and lined with cotton stretched on frames to 
prevent the fish from bruising themselves. 

t On the Susquehanna, at Columbia, Col. James "Worrall has made a fishway by 
cutting a section forty feet long out of the dam, down to a level somewhat below that of 
the water underneath the dam. Beginning at this, at its lowest point, an inclined plane 
with sides (in other words, a trough,) is constructed ujj stream, in and beyond the thick- 
ness of the dam. Through this — what may be termed rerersec?— fishway the shad passed 
last spring in numbers, and, for the first time in nearly thirty years, were seen fifty miles 
above on this river and the Juniata. The result shows that shad not only return to their 
place of birth, but will, when occasion offers, penetrate beyond it. 



1868.] HOUSE— No. 60. 5 

charge, and who has successfully hatched and raised a number 
of parrs in a little spring near his house. Dr. Fletcher is just 
back from an expedition after salmon ova to New Brunswick.* 
The great Hadley Falls dam on the Connecticut still remains 
unbridged to the regret of all persons interested in the restock- 
ing of this fine river. The last legislature, apparently assuming 
what nobody had any ground to assume, that the Hadley 
Falls Company would be ready, and were bound to build a pass 
over their dam, made no direct appropriations for this struc- 
ture. It is true that the 110,000 actually voted for restocking 
rivers and pondsf might, in part, be applied to making a 
fish way under the plea that this was among " appliances and 
structures useful for the passage of the fish." $ But then this 
sum would not be enough. In their Report of last year (page 
3,) the Commissioners stated that -$10,000 was a minimum esti- 
mate for this fishway ; and subsequent examinations have 
tended to raise this estimate to 112,000 at the lowest, and to 
117,000 at the highest. It was further implied that the Had- 
ley Falls Company con'sidered themselves exempt from any 
liability in the premises. If the company has the law, it only 
remains to be said that one of our legislatures has put this Com- 
monwealth in a position to be thwarted by a water power com- 
pany whenever the Commonwealth should seek to render an act 
of simple justice to the States of New Hampshire and Vermont, 
by giving free passage to the migratory fish of the Connecticut 
Eiver. It is true, that several lawyers of reputation have 
given the informal opinion that this company was liable to 
build a fishway ; but the testing of such a question would 
involve legal delays, and the shad would be the sufferers. Moved 
by these considerations, the Commissioners endeavored to make 
a compromise, whereby the company should bear only a small 
part of the first cost, but should continue its interest in the 
structure by undertaking a portion of the expense of keeping 



* He succeeded in bringing home 70,000 healthy ova, of which about 35,000 .are at the 
establishment of Mr. J. S. Robinson, Meredith, N. H. The rest are in the hatching 
troughs of Rev. Livingston Stone, Charlestown, N. H. ; and some of the fry are already 
out and doing admirably. The first hatched in sixty-two days from impregnation, an 
unusually short period. 

t Chapter 344, Section 3, Laws of 1867. 

t Chapter 238, Section 12, Laws of 1866. 



6 RIVER FISHERIES. [Jan. 

it in repair. This overture was met by a flat refusal, accompa- 
nied by a hint at damages in case the State should put up a 
fishway. Waiving for a moment any rights in the case, the 
Commissioners then ordered the immediate construction of as 
much of the fishway as their money would pay for ; but even 
this beginning was found impracticable on account of the unu- 
sually high water which would have made expensive coffer- 
dams essential. Nor does the evil rest here ; for the company 
at Turner's Falls, also relying on the condition in their Act,* 
displayed a solers cunctaiio, and wisely regarded the Holyoke 
dam as a good shield between themselves and the enemy. 
These delays, be they right or wrong, on the part of private 
corporations, are the more to be regretted, because the State 
lias shown the utmost activity and good faith in trying to 
repair any injuries to fisheries whether at home or abroad ; 
and it is proper to add, that on the Merrimack River the compa- 
nies have shown a large spirit, and have been ready to go 
beyond what the law absolutely required of them. 

The law passed at the last session,! together with the progress 
of the work in hand, have turned the attention of the Commis- 
sioners to various plans for restocking our waters by artificial 
or natural propagation. As this whole subject, though not new, 
is certainly novel to our people, it is well to consider to what 
point we have come, here in New England, in the matter of 
animal food. We have come, then, to good beef at 35 cents a 
pound, poultry at 33 cents, sea fish at 20 cents, and other things 
in proportion. As to game, we have come to grouse, venison 
quails and ducks, brought 1,200 miles by railroad, and sold at 
high prices to people who can afford such delicacies. Time 
was, when our country boys could go to the next brook and 
catch enough good trout for a meal ; now, one may buy a pound 
trout, if he has half a dollar wherewith to pay for it, and he 
w^ill probably get a newly spawned fish, speared in its bed, and 
which the fish-monger is prepared to prove was " caught out of 
the State ! " People complain, and the legislature passes game 
laws, and nobody pays any attention to them after they are 
passed. Wiiy ? Because we insist on considering wild animals 
as our remote forefathers considered them, when men were 

* Chapter 275, Section 4, Acts of 18G6. 

t Chapter 344, Section 3, LaAvs of 1867. See Appendix, B. 



1868.] HOUSE— No. CO. 7 

scarce and wild animals were plenty. In a new country, the 
first settlers may properly have, not only liberty, but in some 
things license ; license to till land anywhere, to cut wood any- 
where, to shoot and trap game anywhere, to catch fish anywhere 
and in any way. All such tilings are then too plenty. As 
population increases, land and wood become property, until, as 
in Tuscany, the one is cultivated by the square rod, and the 
other, as in Paris, is sold by the pound. This is the march of 
civilization ; but in our march of civilization we have very 
thoughtlessly trampled under foot a most valuable property^ 
because of a vague idea that it was game, and, by immemorial 
right, belonged to anybody and to everybody. And, to-day, 
there is many an honest fellow who might safely be trusted with 
untold gold, but who, nevertheless, would not scruple to steal 
trout from your brook. This feeling gets strength from the 
loose impression that game, like the Indian, is doomed, and that 
the last shad or trout is soon to be caught, — a sort of Dr. Fear- 
the-worst theory, — 

" The former did maintain 
The man would take all medicine in vain." 

This kind of sentiment is shown by the uncomprehensive way 
in which legislative committees often receive applications from 
people who petition for the control of particular streams, or 
creeks, or ponds, for the purpose of raising fish or oysters in a 
systematic and economical way. At once the members begin 
to ask whether this control would not abrogate some grant of 
the Pequot Indians to Fear-the-Lord Crowell, in the year 1639 ; 
or some ancient right of the inhabitants of Harwich Centre 
to dig one peck of quahogs per man on that particular ground. 
, These same committee-men would not treat a petition for a 
railroad or a Cotton mill in this way, and simply because they 
believe in the success of a railroad or of a mill, but they do not 
believe in and do not know about the success of fish or oysters. 
Let our people once clearly understand that these fish and these 
oysters are real properiu^ to be increased and to be raised in 
value like other property, and there will be no more difficulty 
about the rights of owners. 

It must be confessed that such scepticism is not without good 
grounds. Laws have hitherto done little to check the destruc- 



8 RIVER FISHERIES. [Jan. 

tion of valuable fishes, and that from the rivalry of the very 
men who should support such laws. This state of things was 
very plainly shown at the recent hearing before the Committee 
on Fisheries of tlie Connecticut Assembly. There was a mass 
of testimony, both sworn and informal, from fishermen. The 
owners of pounds or weirs averred that the seiners were»very 
destructive, but that, as to pounds, they absolutely increased 
the fish, because of the sharks and other predatory animals 
which they caught. The " dragmen " or gill-netters were 
emphatic in declaring that theirs was, par excellence, the legit- 
imate mode of taking shad. Their nets were only for a part of 
the day in the water ; they stood, not perpendicularly, but at an 
angle ; they were not too long ; and, above all, they entrapped 
so many spawn-eating eels that they might be considered as real 
benefactors, who took but a small commission on the vast bene- 
fit they did. If there was blame, it lay at the door of the weir 
people, who took all the young fish. The seiners or pier fish- 
ermen said that their nets were short and had large meshes ; 
that they made a sweep or two and then left the river free ; but 
as for those gill-nets, they cut the fish cruelly, and wastefully 
killed many that were not caught. Nearly all agreed, however, 
that the fish had diminished in numbers and in size, but they 
attributed this failure, with striking unanimity, to the Holyoke 
dam ; whereas the Massachusetts fishermen laid less emphasis 
on the dam, and seemed to think that the seiners, pound-men 
and gill-netters at the river mouth got the lion's share of the 
prey. Not even on such a question as the direction of the run 
of shad, could these men, some of whom had fished for seventy 
years, be brought to agree ; for, whereas many of them were 
confident that the shad struck in from the direction of Montauk 
Point, and consequently were only taken on the east sides of 
the pounds set west of the river's mouth, others*were equally 
sure that they came from the westward, and were as often taken 
on the ivest faces of the pounds. 

A parallel to all this may be found in the proceedings of a 
late royal commission on sea fisheries, of which the Hon. Shaw 
Lefevre and Professor Huxley were members. Their industry 
was extraordinary ; and the piles of evidence were such as to 
leave the impression that every fishwife in the three kingdoms 
had had her say. The " trawlers " were vehement against the 



1868.] • HOUSE— No. GO. 9 

"set-hook" men; and the "set-hook" men were furious 
against the " trawlers." The commission decided that they all 
were right, and might fish when, where, and how they pleased; 
and, as to open sea fishing, what little man could do to abate 
them was nothing, and the fisli were, on the average, as plenty 
as ever, and were likely so to remain. But, just then, Mr. 
Bertram comes out with his " Harvest of the Sea,"* in which, 
by fact and figure, he aims to show just the opposite ; namely, 
that the open sea fish have decreased by over-fishing. In the 
investigation of our river fisheries, we, at least, are thus much 
better off, in that we agree the catch has diminished. 

How are these shad fisheries conducted ? In three ways, 
chiefly, viz.: by seines, by gill-nets, and by weirs. Seines or 
sweep-nets are made of a depth which varies with that of the 
river, and of a length yet more variable. Those of the Merri- 
mack usually do not exceed 300 feet; while those used on 
the Potomac are so bulky that they must be paid out from 
a barge rowed by twelve or sixteen men ; and they suffice to 
inclose considerable bays in that stately river. The method 
of hauling the seine differs with the weight of the instrument 
itself, and with the nature of the landing-place. Commonly 
one end is kept on shore while the other is swept round the 
school. If the bank or beach be smooth and sloping the seine 
is at once drawn in, either by hand or by a capstan, as soon as 
the water end is brought ashore ; but, if there be extensive 
flats, or a bad bottom, between the channel and the firm land, 
then a pier is sometimes built out, and the seine is brought in 
at the end of it. At Fancy Hill, on the Delaware, this difficulty 
is got over in another way : a line is carried out for 400 fath- 
oms over the flats ; the seine is swung across the channel, and 
a similar line, attached to the water end of the seine, is brought 
•back to the river bank, and by these lines round capstans, the 
haul is laboriously made. It takes two hours and a half.f 

Gill-net are simple in form, like seines, but made of a fine 
twine not easily seen in the water, and with a 5J inch mesh. 

* A useful book on account of the statistics and the scattered information it contains. 
But it would be for his advantage if Mr. Bertram would study the rudiments of ichthy- 
ology. He describes the *' Vendace " and the " PoUan " as if they were land-locked her- 
ring; while he states that they are Coregoni^ being plainly ignorant that Coregonus is a 
genus not of Clupeoids but Salmonidae. 

t Letter from Mr. B. P. Howell. 



10 RIYER FISHERIES. [Jan. 

The regulation mesh of the Connecticut used to be 6 inches ; 
but it is agreed that this size would now-a-days take few fish, 
which corroborates the general opinion that the average shad 
are smaller than they once were. This diminution is laid by the 
estuary fishermen to the favorite Holyoke dam ; but, inasmuch 
as the best spawning beds are below that dam, and furthermore, 
the prhicipal growth of the shad takes place in the sea, it seems 
reasonable rather to lay it to over-fishing — a result that has 
followed the same cause in the salmon rivers of Scotland. In 
depth the gill-net is usually about 16 feet, and its length varies 
with the breadth of the river. Those of the Delaware were lim- 
ited to GO fathoms ; but this restriction, like those of the Con- 
necticut River, has been ignored. It is a snare that needs 
concealment, and is therefore used by night, or in turbid water. 
It is allowed to drift with the current, or with the tide, and 
the tender shad getting entangled by the gills are speedily 
suffocated. It is pretty well established, also, tjiat a very great 
number break loose, but die of their injuries ; for a small hurt 
will kill a fish, if that hurt be in the nature of a scrape or 
bruise. Even the hardy trout is often killed by the gentle 
handling necessary for obtaining the spawn. In this case 
a growth, apparently confervoid, appears on the bruised sur- 
face, and the fish soon sinks under it. These skin injuries 
among fish seem truly comparable to those superficial burns of 
the human body, which, apparently far from serious, are in 
truth so often fatal. It may be further noticed that a clean 
cut through of some severity, is, in both examples, curable. It 
is often said that few dead fishes are seen floating in the neigh- 
borhood of gill-nets ; but, as a fact, fish killed in this way often 
or even generally sink. Another sort of gill-net is stretched 
on stakes along tide-flats, and the shad get gilled as they try to 
retreat with the falling tide. These are used near New York 
to take the Hudson River shad. The night work of the 
^'dragmen" has given them a cause of opposition to the 
present law of Connecticut, for, say they, the close time is 
between Saturday evening and Monday evening, so you take 
two nights from us, but only one day from the seiners. Such 
objections only illustrate the impossibility of making laws to 
suit everybody, or even anybody. It is the old fable over again 
of the miller and his son who took the donkey to market. The 



1868.] HOUSE— No. 60. 11 

miller at last determined to act as he thought best ; and legis- 
lators may well come to the same determination without the 
miller's whiffling experience. 

A pond, or weir, is an old and singular contrivance whose 
success depends upon the fatal principle of fishes never to turn 
a sharp corner. A place is chosen, where it is known that 
large schools are accustomed to coast along, parallel with the 
shore ; and there a barrier is run out in a straight line. This 
barrier is called the " leader ; " and may be a stone wall, a 
fence of laths or of brush, or a net stretched on poles. At the 
end of this leader, and like a spear-head on its handle, is con- 
structed a heart-shaped inclosure or " pound " having a narrow 
opening on either side next the point of the leader. On its 
offshore end this heart again opens into a circular inclosure 
called the " bowl." A school coasting along shore is suddenly 
stopped by the leader, and immediately the fish turn towards 
deep water, and, swimming parallel with the barrier, pass into 
the heart, whence there is no escape save by a sharp backward 
turn, which, as before stated, is against their principle. There- 
fore they swim round and round, and pass into the bowl, 
where they are left by the tide, or, if the bowl be in deep 
water, they are hauled up by a net-bottom. The pounds of the 
Connecticut have a net leader of from 700 to 1,300 feet, set on 
poles, 25 or 30 feet long, driven into the sand. 

The mesh of the leader is usually from 4|- to 5 inches ; that 
of the bowl from 21 to 2| inches, and capable, therefore of 
taking very small fish.* These pounds are all outside the 
mouth of the river, and to the ivest of it, because, for what- 
ever reason it may be, very few shad can be got east of the 
river mouth. It is maintained by some, that the fresh water 
from the river " bows out " to the westward, and that the shad 

* The average yearly take of shad in Connecticut is estimated as follows : — 

82 gill-nets, within Connecticut, 164,500 

16 pounds, " 112,000 

Pier Seining, " 150,000 

Seining, above Essex, " 100,000 

Seining, within Massachusetts, 102,000 

Total, 628,500 

There are, however, some years of scarcity, as in 1853, when the best Saybrook pound 
got but 1,700, or one-tifth the average. The take on the Merrimack only from Lowell to 
the sea, thirty-two years ago, was estimated at 365,000, which will give an idea of what 
our fisheries ought to be. (See Keport for 1866, page 39.) 



12 RIYER FISHERIES. [Jan. 

seek it: by others, that the fish come from the west, and are 
not affected by the fresh water which spreads on both sides of 
the mouth ; and still by others, that they come from the direction 
of Montauk Point, diagonally, and that they strike directly into 
the river, or glance to the westward of it, seeking the little 
Crustacea known as sand-fleas, and which are said to be their 
favorite food. 

To the general question of the periods and directions of the 
migration of fishes we can look for no reliable answer until we 
can get the facts in a scientific form. And it is, therefore, 
gratifying to know that Professor Peirce, the present Superin- 
tendent of our Coast Survey, has answered the Resolves of 
several of the New England States * by directing such informa- 
tion to be got along our coast, as may, when combined, furnish 
such an answer. The chief elements of the general questions 
are these : — 

1. At what periods do the salmon, the shad, &c., come into, 
and go out from, our rivers ? 

2. When they go out, do they remain near the river mouth, 
or do they stand out far into the deep sea, or do they retreat in 
a direction parallel with the coast, to the warmer waters of the 
South ? 

3. When they come back do they pass from south to north- 
ward, like the brigades of one great army, which, as it passes, 
gives off to each river its quota, or do the natives of each river 
simply stand in from the sea, immediately outside its mouth, 
where they have lain till the instinct of propagation should 
once more call them to fresh water ? 

Doubtless many people feel already prepared to answer these 
questions, but should we put to them such queries as these: How 
many successive " runs " of shad are there in each river ? On 
what does the succession of these runs depend ? Bo they always 
spawn before leaving a river, or do they pass several times in and 
out before that act ? How long does each school of shad remain 
in a river ? What is its rate of progress up stream, and on what 
does this rate depend ? How do you regard the so-called " bar- 
ren" shad, which are taken near Monomoy Point, at a season 
when others are spawning in the Connecticut? etc., etc., or, 

* See Appendix, B. 



1868.] - HOUSE— No. GO. 13 

again, What are the precise periods at which the salmon of 
different ages (the smolts, the grisle, and the grown salmon) 
go to and return from the sea ? What are the so-called early 
and late runs on some Canadian rivers, for example, in the 
north branch of the Miramichi ? Are these runs of different 
individuals, or are they of the same individuals which have 
gone down and have come back again ? How do you regard 
the salmon taken at sea, and in fine condition, at seasons when 
most of them are in the rivers ? etc., etc. To all a very insuf- 
ficient answer would most likely be given. 

The different classes of fishermen, and the different modes of 
fishing, have been considered at some length, in order to show 
that laios alone will scarcely provide for a great increase of our 
valuable fishes, and this because there is a greater or less oppo- 
sition and rivalry among those classes, which breaks up una- 
nimity of protection, while the effect of their combined action 
is unanimity of destruction. That good laws will be a whole- 
some check there can be no doubt, but they alone will not suffice 
to make our rivers and ponds a sure source of abundant food 
in the same sense that our pastures are so. 

There lies, perhaps, a remedy in our own hands, and that 
remedy is Artificial Breeding, a sowing of fish, just like a sow- 
ing of corn. People will at once ask, what advantage is there 
in artificial over natural propagation ; why not let the fish breed 
in their own way ? This question may best be answered by 
another : What advantage is there in sowing, over wild growth ? 
Why not let corn grow and sow itself in its own way ? Or, in 
a less striking form, what advantage is there in good cultiva- 
tion over bad ? Suppose two equal quantities of corn sown, 
and the product gathered and again sown, for three successive 
seasons, and suppose the one were ill cultivated, and so pro- 
duced only ten bushels to an acre, while the other were well 
cultivated and produced seventy bushels to an acre. Then the 
increasing ratio of the two products, at the end of each season, . 
would be as seven to one, and for the three seasons, 7 : 1 — 
49 : 1 — 343 : 1. In other words, at the end of the third season 
where the poor cultivation had produced one bushel, or one 
quart, the good would have produced three hundred and forty- 
three bushels, or three hundred and forty-three quarts. Turn 
now to a living animal and see if there be any analogy in what is 



14 



RIVER FISHERIES. 



[Jan. 



called the " waste of nature," (though more properly the prod- 
iga/itf/ or the balance of nature.) We may select the salmon, 
because the long study of this animal in Great Britain has given 
us many good data to go upon. The problem will be complex, 
but a simpler one will follow in the shad. We must premise 
in general that newly-hatched salmon sltq coWed new parrs; 
they remain one year in fresh water, then one-half the brood 
take on silvery scales, are called smoUs, and go down to the 
sea ; the other half of the brood remain another year in fresh 
water, and are called yearling parrs, when they too change to 
smoUs and go down to the sea. We will assume (what may 
not be true) that all smolts going down to the sea return the 
following autumn as grilse, i. e., half-grown fish, of three or 
four pounds weight, and ready to spawn. These once more go 
to the sea, and on their return are called full salmon, and 
weigh eight pounds or more. We will further assume that 
grilse and salmon lay about one thousand eggs to each pound 
of their weight, and that about five in every seven are females, 
of which some pair with the male parrs in the river. In order 
to make a table of yearly increase we have now only to find 
what proportion of young fish survive each stage of their exist- 
ence. Comparing the statistics of Mr. T. T. Stoddart * with 
those of other authorities, the following fraction may be 
deduced : — 





i 


\ of eggs hatch, and become new parrs. 




l\ 


-| of these parrs grow to be smolts. 




Tk 


-gL. of these smolts grow to be grilse. 




li-Q-o 


Jq of these grilse grow to be sahnon. 



Hence it would appear that of fifteen hundred eggs of salmon 
laid in the natural way, only one at last produces a full grown 
fish. From the foregoing data the following table may be cal- 
culated, which is intended to exhibit what twenty thousand 
eggs would come to in three years if naturally deposited in a 
river. 



* Bertram — Harvest of the Sea, p. Ill, etc. 



1868.] 



house—No. 60. 



15 



Beginning of First 
Year. 


Beginning of Second 
Year. 


Beginning of Tliird 
Year. 


End of Tliird Year. 


20,000 Ova. 


7,000 New Parrs. 


( 3,500 Year Parrs. 
( 70 Grilse. 
150,000 Eggs.* 


70 Grilse. 

7 Salmon. 
50,000 New Parrs. 
200,000 Eggs.f 



That is to say, these 20,000 eggs would, in three years, give 
less than eighty fish fit for the table, and a quantity of young 
ones and eggs, of which a very small proportion would ever 
arrive at maturity. 

By the shad, thanks to the admirable experiments of Green, 
(Appendix, A,) we may illustrate the results of natural and 
artificial propagation side by side. We assume that the male 
is fecund at one year, that the female carries spawn at two 
years, and lays from 10,000 to 12,000 eggs to each pound of 
her weight, and that males and females are in equal numbers. 
Considering what is known of the hatching of the eggs, by the 
natural process, and assuming that the young are destroyed in 
the same proportion as those of the salmon, the following frac- 
tions may be deduced : — 



sV 



T'ooo" 



■JIT'O^O 



T^'0^0" 



I of all eggs laid, get impregnated and escape being eaten by other 
fishes. 

-Jq of these hatch. 

-Jq of those hatched grow to one year. 

1 of the yearlings grow to two years. 

i of the two-year-olds grow to three years. 



It would hence appear, that of 40,000 eggs of shad laid in 
the natural way, only one arrives at the age of three years. 
Now suppose two pairs of adult shad should come to a river 
each year, for three successive years, and there breed ; what 



* Say from 50 female Grilse of 3 lbs. each. 

I Say from 50 female Grilse of 3 lbs., and 5 female salmon of 10 lbs. 



16 



RIVER FISHERIES. 



[Jan 



would they and their descendants amount to at the end of that 
time ? The following table calculated from the data foregoing 
will answer this question. 



Natural Breeding. 



Beginning of First Year. 


Beginning of Second 
Year. 


Beginning of Tliird 
Year. 


End of Tliird Year. 




f 4 Shad. 


r 4 Shad. 


4 Shad. 


4 Shad. 


■I 

1^1,750 Young. 


(1,750 Young. 
35 Yearlings. 


35 Yearling. 
7 two-year-olds. 


1,750 Young. 


35 Yearlings. 


( 7 two-year-olds. 
(1,750 Young. 


3 three-year-olds. 
35 Yearling. 


Total, 


84 



Even at this rate, and allowing that all shad die at three 
years old, the number of three-year-old fish in a river, derived 
from a single pair, would double in about eight years, although, 
for several years, there would be, of course, no three-year-olds 
at all in the river, the original pair having died. But, since 
the number of the largest fish is always small, compared with 
those of less size, and as these large ones are most liable to get 
caught, it may well be understood that the river fishermen 
think that both shad and salmon have " decreased in size," and 
that they are obliged to make their net-meshes smaller. The 
gain by artificial propagation of shad, lies at the very outset, 
and consists in the increased percentage of spawn that may 
thus be hatched ; the ratio of the artificial to the natural being 
at the most moderate estimate, as seventy-two to one. Starting 
with this difference, and taking the other proportions just as in 
the above table, we should have the following results from the 
artificially hatched spawn of two pairs of large shad, taken three 
years in succession, added to the spawn of their mature progeny 
within that period : — 



1868.] 



HOUSE— No. 60. 

Artificial Breeding. 



17 



Beginning of First Year. 


Beginning of Second 
Year. 


Beginning of Tliird 
Year. 


End of Tliird Year. 


*126,000 Young. 


*126,000 Young. 
2,520 Yearlings. 


*126,000 Young. 

2,520 Yearlings. 

504 two-year-olds. 

t3,969,000 Young. 


2,520 Yearlings. 
504 two-year olds. 
252 three-year-olds 
158,760 Yearlings 


Total, 


162,036. 



Compared with the former table, the results in favor of 
artificial propagation are as 162,036 to 84, or, as 2,000 to 1, 
nearly. This is nothing unbelievable, when we see what a 
difference was made in corn, by a poor or a good cultivation. 
But it is a difference that ought to call the attention of all 
thoughtful persons to this subject. It would be very little labor 
or expense to set free 100,000,000 young shad in the Connec- 
ticut, and these might reasonably be supposed to return us 
nearly a half million of two-year-old fish. Fifteen hundred large 
females would yield the required amount of spawn, and this is 
not more than a half of one per cent, of the females now yearly 
taken in the river. 

The Commissioners intend, if possible, to make experiments 
next summer on a large scale, both in the Connecticut and Mer- 
rimack Rivers. If seconded by the authorities of Connecticut, 
there is no reason why the fisheries, within two or three years, 
should. not be a good deal augmented. Once show the fisher- 
men that shad are increasing, and salmon are coming in, and 
they may be relied on to support measures which they now 
regard with excusable indifference or incredulity. All new 
things are hard of introduction. When the fish way at Lowell 
was building, some of the factory superintendents (very intel- 
ligent men about factories,^ said, that the fish must have a 
schoolmaster to teach them to go up those steps ! The next 

* From the eggs of two females: — -3_ of 140,000. 



t From the eggs of the two-year olds. 
3 



18 RIYER FISHERIES. [Jan. 

year shad and salmon did go up, and without any Schoolmaster. 
The nearer we get to the truth, the more it stands out, that 
artificial propagation and free passage over dams, are the two 
great conditions of restocking rivers. The question of pollu- 
tion assumes a smaller proportion. It now appears that saw- 
dust does not kill trout, but their spawn only, and that 
chemicals, unless in unreasonable quantity, do not much affect 
a great stream. The dreaded Winsor Locks turn out to be 
comparatively innocent of the destruction of young shad. Rea- 
sonable care and just regulations will keep all these pollutions 
within bounds, and render our streams fit habitations for their 
people. Shad are by no means the only fish that may be 
increased by artificial breeding. The salmon has already been 
spoken of, and a table has been given to illustrate this part of 
its history. Indeed, it may be bred with more certainty than 
the shad, because the young may conveniently be kept and 
protected from natural dangers, till the age of one or two years. 
The fisheries of the Tay have increased ten per cent, in value, 
by the annual introduction of 150,000 artificially hatched smolts,* 
and this is an important increase in a river whose yearly yield 
is 70,000 fish ; 150,000 ova may be hatched in a shallow 
trough, a foot wide, and fifty feet long, and the fry may be 
kept in pools of small extent, provided the banks afford abun- 
dant insects, worms, etc., for food ; and provided further, that 
there be a strong current of cool spring water constantly flow- 
ing through. Of the smolts liberated, one in twenty-five was 
afterwards caught, as a marketable fish. If this be a fair gener- 
alization, it would follow that if, 1,000,000 smolts were yearly 
set free in the Merrimack or the Connecticut, the annual catch 
of the river, from this source alone, should be 40,000 grilse 
and salmon, which, at an average of eight pounds, and at forty 
cents a pound, would be 320,000 pounds, worth 1128,000. A 
million of ova would be the product of one hundred females, 
each of ten pounds weight ; sixty or seventy males, and small 
ones at that, would be plenty for the impregnation of the batch. 
Two hundred fish (to allow a proper margin,) ought to produce 
enough impregnated eggs to raise a million of smolts. 

Therefore the return of marketable fish should be as two 
hundred to one. Let it be remembered that what here stands 

* Bertram— Harvest of the Sea, p. 111. 



1868.] HOUSE— No. 60. 19 

only on paper, may, with the same pains that produces a crop 
of wheat, be illustrated by an accomplished fact. It has been 
so illustrated in England, Scotland and Ireland.* And yet our 
clever people go on, year after year, putting up more thousands 
of spindles, and flooding the market with unsalable cotton 
goods, when, from the very water which turns their wheels, 
they might coin money, with no other machinery than a net 
and a hatching trough ! Thirty years ago, no fresh salmon 
were brought to our market from the British Provinces, simply 
because the Penobscot, the Kennebec, and the Androscoggin 
were full of them, while the Canadians had already exhausted 
the tributaries of the St. Lawrence, above and including the 
River Jaques Cartier. Noio^ we have shut out the fish by high 
dams, such as those at Augusta, at Great Works, &c. But the 
Canadians, by wise legislation, have re-peopled their streams, 
and the St. Lawrence at present boasts eighty-seven salmon 
tributaries.! The English are pursuing a similar course, and 
in such rivers as the Wye, where the salmon was extinct a few 
years ago, there are now many. The English have gone fur- 
ther, and after several failures, have triumphantly succeeded in 
gettin'g salmon spawn to Australia, which have hatched, and the 
young have gone to sea, and have returned large fish to the river. 
After the salmon proper, the so-called '* land-locked salmon " 
deserves attention. It is found at the upper waters of the St. 
Croix River, and in Sebago Lake, in one of whose tributaries, 
Crooked River, it is captured when it runs up to spawn in 
November. They average there about four pounds in weight, 
but grow as large as sixteen pounds. The young are very 
agile. Some of them, bred artificially by Mr. Robinson, at 
Meredith, N. H., were put, when quite small, in a tank, into 
which, from a height of nine inches, fell a stream of water 
flowing through a one-and-a-half-inch hole ; whereupon the 
lively parrs leaped up the stream, and into the upper tank, like 
harlequin going through a clock-face. $ There is a similar 

* In 1863, Scotland, Ireland and Wales, a territory about the size of New England, 
furnished to the London market alone, 3,712,016 pounds of salmon. The fishing renta 
of the Tay, in 1852, was less than £8,000; in 1864 it had risen to £15,000. Xow let any 
one look at the map of Maine, with her thousand lakes and rivers, and imagine what 
riches ought to dwell in those waters ! 

t Communication from Mr. Nathan Cummings, of Portland. 

X Report for 1806, p. 10, 



20 RIVER FISHERIES. [Jan. 

salmon in Lake Wencrn, the " Vctterns, Silfver-lax" of the 
SwedewS. 

Dr. Giinther* considers it a distinct species of lake trout, and 
describes it under the name of Salmo hardinii. The best 
defined specific difference he points out is, that the tail-scales 
are smaller than those of S. salar ; but as he had only a single 
specimen for study, his conclusion must be taken witli caution. 
Nor can his assertion be accepted that " we have no evidence 
whatever that a migratory species has ever been changed into 
a non-migratory one. In Jamaica Pond, Massachusetts, and 
in Lake Winnepisseogee, New Hampshire, the common smelt, 
QOsmerus viridescens) lives entirely cut off from salt water. 
They were put in Jamaica Pond, near the close of the last 
century ; and they have been introduced for many years in 
Lake Winnepisseogee. As in the land-locked salmon, their 
size has diminished a good deal. That captivity is not neces- 
sarily fatal to the salmon, is shown by the fact that a smolt has 
been kept three years in the Stormontfield ponds, and con- 
tinued to thrive and grow.f The trouts in general, but espe- 
cially the salmon proper, are fish of a hard, rich meat, which 
keeps well, and is nourishing food. The salmon has the fur- 
ther advantage of getting a great and rapid growth by going to 
the sea. And in general, the migratory fishes are especially 

* Catalogue of the Physostomi of the British Museum. A. Giinther: 1866. Dr. Giin- 
ther makes a very creditable attempt to get some data by which the maze of this group 
may be unravelled. From the form of the preoperculum, the number of rows of scales 
above the lateral line, the length and number of the appendices pylorica?, the number of 
vertebra?, &c., he hopes to draw such data. It is, therefore, much to be regretted that the 
British Museum afFoided this learned ichthyologist such meagre materials for some parts 
of his study. He names whole series of species, without quoting any specimen at hand^ 
And this is especially true of the American trouts. It is hardly to be believed that his 
collections contained nothing of our common brook trout save stuffed skins, which, in the 
present state of science, are next to useless, and are fitted rather for amateur show cases 
or curiosity shops than for the shelves of a great museum. This poverty of material has 
led our author to admit a great number of ill-described species, and, consequently, we 
have the appalling array of 82 under the single genus, salmo. It is true that he criticises 
here and there, as in the case of Mr. Breevort's Japanese plates; and it is a great pity 
that he did not go further and demolish the species of Girard, in the Pacific Railroad sur- 
vey; for nothing can be more preposterous than the attempt of this writer to manufacture 
zoology out of dried heads, and skins without fins! In regard to those trouts described 
from personal examination, we cannot too much thank Dr. Giinther for the admirable 
details given by him; at the same time, we may be allowed to suspend judgment as to 
the existence of so many species as he gives, when we reflect that in Great Britain alone 
he establishes six distinct charrs, (S. umbla,) and when wfe further observe that he uses 
the hypothesis of hybridism to explain some intermediate-forms. 

t Perth Courier, May, 1801; quoted by Bertram, p. 109. 



1868.] HOUSE— No. 60. 21 

to be encouraged, because thej require no feeding, and arc sure 
of abundant nourishment in the ocean. Next may be men- 
tioned the several species of our White Fisli, (^Corrg-onus,} all 
excellent for the table. Could they be artificially bred in our 
larger ponds, they would form an important addition to our 
water culture. Besides those of the great lakes, (C albus, 
C. sapidissinnis, etc.,') there is a smaller one (C. Novce Ang-iicc,') 
m Lake Winnipisseogee, where it is known as the *' Shad- 
waiter." 

The black bass (^Grystes fasciatus') is a perch-like fish, 
and lives by preference in lakes and large ponds. Its flesh is 
excellent, and it attains a size of from 2 pounds to 7 pounds, 
according to food and situation. In 1850, Mr. Samuel T. Tis- 
dale, of East Wareham, succeeded, after much care, in bring- 
ing twenty-seven from Saratoga Lake alive, to his place, where 
he put them in Flax Pond, close to his house. ^In 1851, and 
again in 1852, others were brought, and several of the neigh- 
boring ponds were stocked. The matter was kept secret, and 
a "jubilee " of five years given to the fish ; at the end of which 
time, they were found to have peopled these ponds, and to 
have grown finely. So soon as this fact was known, all the 
neighborhood at once gave its assiduous attention to poaching, 
indignant that any one should be so aristocratic as to try to 
furnish cheap food to the community ! Their efforts were so 
far successful as much to reduce the number of the fish. 

The black bass takes a fly, a " spoon," or a moving minnow, 
during the summer months, and makes, when hooked, a hard 
fight ; rushing hither and thither, and springing into the air as 
actively as a trout. In late autumn it will bite at a standing 
bait. 

Duryig May they come by pairs, and make a spawning bed 
on a sandy bottom in from 4 to 6 feet of water. This they 
sweep with their tails after the manner of trout, and the male 
remains on guard over the spawn, and drives away the many 
intruders which hang about greedy for this savory food. In 
June, the young, — recognizable by a black band across the 
tail, — are first observed, and these, by autumn, have grown to 
a length of three or four inches. At one year old, they weigh 
from ^ to i pound, and increase about J pound yearly, till they 
arrive at 6 pounds or 8 pounds, according to food and water. 



22 RIVER FISHERIES. [Jan. 

They are in prime condition in August and September, but in 
winter are black and lean. The objection in certain cases to 
this species, is its great voraciousness. It destroys almost 
everything before it except the perch, and even kills out 
pickerel by devouring the young. But in ponds already 
infested with pickerel and abounding in '' shiners," it may be 
introduced with much profit, because it replaces bad fish by 
good. It should be carefully excluded, however, from all 
waters that contain trout, white fish, or other valuable species, 
and from ponds communicating' with such waters, for it is a 
most restless and pushing robber, eagerly searching and follow- 
ing the inlets and outlets of its pond. Of this propensity the 
Brookline reservoir gives the most curious instance. Nine 
black bass of 2^ to 3 pounds were put in there in July, 1862. 
Since then, in the examination of the water pipes leading from 
this, reservoir to Long Pond, these fishes have been found in 
considerable numbers and of large size ;* and, moreover, either 
by their young or their eggs, they have penetrated the screen 
at the mouth of the pipe, and have appeared in the pond 
itself!* So these black bass, apparently impelled by no other 
feeling than that of restlessness, performed an underground 
journey of fifteen miles, in a brick aqueduct whose greater 
diameter was six feet If 

The alewife, (^alosa ti/rannus,') although very inferior to the 
species above cited, is valuable, first, on account of its great 
prolificness, and secondly, because in its ascent from the sea, it 
will penetrate in vast numbers the smallest brooks. At the 
spawning season it is extremely tame, and will crowd into the 
locks of a canal, or any unusual place, whereas the shad is 
much more shy, and only affects the more open parts of a 
stream. On the Agawam River, the alewives, after passing up 
a small ditch, whose lower end was among the clatter of mill- 
wheels, and 250 feet of which were covered, pushed through 
an underground drain a thousand feet long, in order to get to 
the pond where they spawned. This underground drain 
became stopped, and the young alewives could not get to the 

* Communication from Mr. John H. Thorndike, President of the Water Board. 

t Ariangements have been made with Mr. Tisdale to stock several other ponds, and 
the work is already begun. The best time to move the live fish, is in the cool weather 
of late autumn or of early spring. 



1868.] HOUSE— No. 60. 23 

sea. Some of them were taken in January, and had not grown 
since October, for they were no bigger than in that month. 
Others, taken afterwards, were two-thirds of their natural size ; 
but whether these last were old fish, that had been shut in, or 
whether they were land-locked young of a previous season, or 
of the same season, could not be determined. In a brook 
whose water was so cold that the alewives avoided it, Mr. 
Tisdale tried an important experiment. He put a dam across, 
and in the pond thus formed put live alewives. These bred 
there, and they and their young passed over the dam to the 
sea. The next spring, large numbers of alewives passed up 
this brook, for the first time on record, and were seen leaping 
at the face of the dam, in vain attempts to surmount it. This 
is a crucial experiment, so far as concerns the theory that a fish 
returns to its birthplace to spawn, even under an unfavorable 
condition, (cold water,) but it does not certainly prove that the 
alewife gets its growth in a single year. For those that were 
seen might have been the original breeders, together with some 
companions which they led from their usual course up the 
warm stream. So far as is known, neither the alewife nor the 
shad get their growth in less than four or five years. The 
instinct of return to birthplace is not absolute among these 
migratory fishes ; there are apparently certain stragglers — 
wrong-headed individuals, which, like some men, refuse to do 
a thing simply because others do do it. And again, the instinct 
may be modified by circumstances. Thus in 1848, when the 
Merrimack was closed by the Lawrence dam, the alewives, 
finding their path barred at that point, faced about, descended 
the river, coasted along shore to the Ipswich River, and, to the 
astonishment of the inhabitants, suddenly filled that little 
stream almost solid. A similar fact was reported in the British 
Provinces, where the salmon, alarmed at the change in shape 
of a river's mouth by new stake-nets, quitted the Natashquan, 
and entered the neighboring Kegaska, where they were recog- 
nized by their superior size.* On almost all our streams, the 
alewives have been exterminated by weirs, by scoop-netting, and 
especially by dams, which shut them from their favorite ponds. 

* It was some such straggling salmon that last spring ran up the Merrimack. Five 
were taken below and four above the Lawrence dam, whereas a single visitor is usually a 
rarity. 



24 RIVER FISHERIES. [Jan. 

But if our people will imitate the action of those interested in 
Mystic River,* they will get the fish back in great abundance. 
The Act (chap. 149, 1867,) simply forbids fishing for five years, 
and the people themselves have seen that a suitable fish way is 
made over the dam at the outlet of the pond. This action 
must come from the people themselves. It has not been the 
policy of the Commissioners to force reforms upon the public. 
They have tried to publish all important information on the 
subject, and have held themselves ready to aid those who asked 
for advice or for the protection of the laws. To extend and to 
unite their influence, the Commissioners of Maine, New Hamp- 
shire, Vermont, Massachusetts and Connecticut have made an 
informal association under the name of New England Commis- 
sioners of River Fisheries, f They hold meetings from time to 
time, and endeavor to establish a common policy for New Eng- 
land, in the attempt to restore our indigenous fishes and to 
introduce new ones. In conclusion, the Commissioners beg 
leave to present the following summary of their present position 
and requirements. 

1. As to money. Of the appropriations respectively of 
$7,000 and of 810,000, there will probably remain subject to 
their draft, at the close of this year, about 110,500. During 
the next year there will be needed, for the prompt erection of 
the great fishway at Holyoke, a sum of $15,000 to $17,000, 
and for the important attempts in the artificial breeding of fish, 
on a large scale, not less than $5,000, or a total of $22,000. 
As there will doubtless be over $10,000 on hand to begin with, 
a further appropriation of $12,000 ought to suffice. 

2. As to laws. Those now in force seem enough ; and it 
only remains for this Commonwealth to comply with the condi- 
tion made by Connecticut in the law passed by her last Assem- 
bly, [Appendix, B,] by which the taking of shad in the Con- 
necticut River is forbidden, except between the loth of March 
and the 15th of June, and between sunrise of Monday morning 

* See Appendix, B. 

t The following are the names and address of the members: 

il/ame— Charles G. Atkins, Augusta; N. W. Foster, East Machias. 

New Hampshire — Hon. H. A. Bellows, (Chairman,) Concord; W. A. Sanborn, Weir's. 

Verm(yiit — Prof. A. D. Hagar, Proctorsville; Hon. Charles Barrett, Grafton. 
Massachusetts — Alfred R. Field, Greenfield; Theodore Lyman, (Secretary,) Brookline. 

Connecticut— R. AVoodward, Middletown; James Rankin, Old Saybrook. 



1868.] HOUSE— No. 60. 25 

and sunset of Saturday evening ; and further, that no salmon 
shall be taken before March lot!), 1872; all, however, on con- 
dition that Massachusetts should impose the same limitations 
of time. The Commissioners therefore recommend that these 
restrictions be extended to that part of the Connecticut River 
lying within the limits of this Commonwealth, provided that 
the Fish Commissioners be allowed to take all fish needed to 
re-stock this or any other waters of the Commonwealth. 

All of which is respectfully submitted. 

THEODORE LYMAN, 
ALFRED R. FIELD, 

Commissioners. 



APPENDIX 



28 RIVER FISHERIES. [Jan. 



[A.] 
ARTIFICIAL BREEDING OF TROUT AND SHAD. 



The artificial breeding of fishes is, .in theory, familiar to most people, 
but in practice, very little is known of the necessary details. 

In France, thanks to the labors of Professor Coste m carrying out 
the discoveries of Joseph Remy, pisciculture has become a true indus- 
try. The Imperial establishment at Huningue, founded fifteen years 
ago, produced, in 1861, 16,000,000 of eggs. These were of several 
species, (all, however, of the Salmonida?,) viz., the Fera, {coregonus 
fera,) which is like our white fish ; the Ombre chevalier, (Salmo umhla,) 
called in the Tyrol, Salbling, and in England, Charr ; the large and 
valuable Danube salmon, (salmo hiicho,) called Huchen by the Ger- 
mans; the great trout of the lakes, (Salmo Trutta,) which is the 
Seeforelle. of the Germans, Truite Saumonee of the French, and sea 
trout of the English ; the common salmon, (salmo solar,) and the 
European brook trout, (Salmo fario,) called Forelle by the Germans. 
This excellent establishment is (or was) nevertheless defective in two 
respects ; first, in the imperfect means of getting eggs, which are col- 
lected at distant points, and consequently arrive often in bad condition ; 
^Yhereas, so extensive and well appointed a place should, in most cases, 
raise or keep its own breeding fish; secondly, in the small variety of 
fish cultivated, and those all of one family. All of which is said not to 
criticize what has been effected, but to point out what may be in future 
expected., To breed trout successfully there are needed (1,) good and 
abundant water ; (2,) proper apparatus ; (3,) a regular supply of breed- 
ing fish ; (4,) general skill and care in the operation ; (5,) plenty of 
food. The water should be of a spring ; pure, clear, and as near 47^ the 
year round as may be. Moreover, it should flow constantly. To avoid 
the mud and overflow of freshets, the breeding ponds should never be 
in the main stream. But this should be dammed, (PL III, Jig. 2, c?,) 
and from the mill-pond thus made, a canal or a flume (PL III., Jig. 2, hh) 
should be led to supply the needful water. At the mouth of this canal 
may be a sluice-gate against freshets, and there must be, also, a barrier 
to prevent the escape of the fish. (PL HI, Jig. 2, a c.) This may be 
either a water-wheel moving below in a casing (PL II., Jig. 6) and 
turned by the current, or, if there should be a little fall, a horizontal 



1868.] HOUSE— No. 60. 29 

raised grating may be placed just under it. (PL IL.fg. 4.) These 
contrivances are better than a vertical screen, which gets clogged with 
leaves, &c., and does not permit floating food to pass, which is a very 
important item. This food consists of an immense variety of organ- 
isms, such as larvns of dragon flies, minute Crustacea, water worms and 
beetles, young fishes, aquatic snails, &c., &c. Its quantity may be 
increased by placing a slanting boom at the mouth of the canal in such a 
way as to turn into it whatever the current brings down. (PL III., 
jig, 2, n.) The lower part x>f the canal should be about 4 feet wide 
and 2 feet deep, and its bottom should be of clean gravel, while the top 
is loosely covered with boards. (PL III., Jig. 2, bb.) 

This is the spawning bed. Beyond comes a pool or a pond (h. L) 
for breeding-fish, and furnished with a screened outlet (o.) Such a 
pool should be four feet deep, and its bottom weedy or earthy and in no 
case covered with graveL Other and smaller pools may be provided 
for the young fish of different sizes, (m. m.,) each with a good conduit 
of running water (e.) and a screened outlet (o.) The hatching house 
{PL III, Jig. 2, I ; PL 11, Jig. 5) must also be supplied by a conduit of 
running water {PL III., Jig. 2, e ; PL II, Jig. 5, a) and with a screened 
outlet {PL III., Jig. 2, o.) This building is a simple close shed with 
small windows which can be darkened at pleasure. {PL II., Jig. 6, e. e. e.) 
Within are double ranges of shallow troughs {c. c. c.) communicating 
by little sluice gates {Jig. 3 e) with a supply trough {Jig. 5, g ; Jig. 2, d) 
which, in turn, is filled from the lower end of the conduit (a.) out- 
side the building. This lower end is fitted with three flannel strainers 
{b. b. b.) through which the water passes, and then enters the supply 
trough through a little sluice-gate. {Fig. 3, c.) These strainers should 
be placed at an angle, so as to present much surface, {PL III, Jig. 5, a.) 
and should be made to slip in and out, so that they may be frequently 
w^ashed. Moreover, a sluice-gate should always be placed beloio 
strainers, {b. c.,) otherwise it gets clogged by leaves, etc. Each spawn- 
trough {PL 11^ Jig. 3,/j in the range is 18 inches long by 12 wide, and 
is separated from its neighbors by a ridge Ih inches high {h.) The 
sides may be as high as 8 inches, which gives a chance to back up the 
water, and make a trough of that depth, after the fry hatch. The 
water furni.-hed to each single range by the sluice-gate, (e.,) should be 
equal to an inch stream with a three inch head. The water runs down 
the range with a gentle current about an inch deep, to secure which, a 
fall of 1 inch in 6 feet is enough. Hatching-troughs are usually made 
of wood, with a bottom of half an inch of perfectly clean gravel about 
the size of peas. 

But unquestionably some sort of glazed pottery or coarse glass would 
be much cleaner, and not liable to the black mould which appears on 



30 RIVER FISHERIES. [Jan. 

wood, (especially where there is a knot,) and which, penetrating the 
gravel destroys the spawn. In Europe the ova are placed on glass bars, 
but it would probably suffice to have the bottom of the pottery trough 
made rough and uneven, so that the ova should be raised, to allow a 
flow of water under and about them. After flowing the length of the 
range the water falls through a wide cut in the floor, (A,) and passes 
out under the shed. In addition to the strainers above mentioned, it is 
well to make one or more piles of gravel in the supply trough, which 
act as filters. To render the hatching house comfortable in the winter, 
a stove (f) may be placed beyond the troughs. The pools, if four feet 
deep, twenty-five broad, and forty long, will each contain several thou- 
sand breeding fish, weighing from half a pound to a pound and a half. 
The bottom is left earthy, in order that they may not deposit their 
spawn on it. As soon as late autumn approaches the trout pair, and 
seek the congenial gravel of the covered spawning bed. {PL III., jig. 2, 
h. h.) Once or twice a day the entrance to the spawning bed is sud- 
denly closed by a bag, the mouth of which is held open by a wooden 
frame, then the boards are thrown off the trench, and the spawn ers, 
seeking to escape into their pool, are caught in the bag, whence they are 
gently transferred (by untying the bottom,) to a tub of clean water, 
which is at once taken to the hatching house. In this way none but 
ripe jish are secured, and those in the pool are not bothered by being 
constantly netted and examined. Each trout is now taken in turn 
from the tub, and held over a milk-pan half full of pure water. The 
fish should lie on its back, on the sleeve of the right arm, which should 
be covered with cotton flannel ; the right hand grasps gently but firmly 
the body just above the tail, the left hand rests below the gills, and near 
the pectoral fins. {PI. III., jig. 3.j The animal, being thus firmly held, 
the forefinger of the left hand is passed repeatedly down the belly, with 
a slow, steady, and moderate pressure, and the ova flowing out fall into 
the pan of water. The male fish gives out in like manner the seminal 
fluid, which looks like thick milk. Each fish, after being stript, is 
quickly put in another, tub, and the whole are at last returned to their 
pool. This operation requires some dexterity, otherwise the fish get 
bruised, which is liable to produce on them a fatal vegetable growth. 
They are said to be much more docile in fine weather than in stormy, 
when they are apt to flap about and hurt themselves. For very large 
fish, like salmon, it is convenient to have a second man, who holds the 
tail, giving the other full use of his left hand. It is not necessary to 
pay attention to the different pairs of trout ; males and females may be 
taken indiscriminately, and the product of the whole mixed in a com- 
mon pan. The water now assumes a milky tinge, from the milt of the 
male, while the ova sink at once to the bottom, and there stick fast. 



1868.] HOUSE— No. 60. 31 

They appear as little round bodies about three-sixteenths of an inch in 
diameter, (or larger, if the parent be large,) of a pale yellow or an 
orange hue, according as the parent has white or pink flesh.* They 
must be left in the pan as long as they will stick, which will be fifteen 
or twenty minutes.f Then the water must be gently drained off, fresh 
water poured in, and this washing repeated once or twice. And here 
is the golden rule for treating eggs of fishes : never touch them, but move 
them, by moving the tvater in which they lie. The washed eggs are now 
ready to be spread in the hatching trough, which is done by tilting the 
pan, and allowing them to slide gradually out, so that they do not lie on 
top each other, and are not overcrowded. They may be further 
arranged by agitating the water with a turkey's wing feather. There 
may be placed about four thousand in each square, which is eighteen by 
twelve inches. They should be allowed to remain undisturbed, but 
should be constantly watched, and those which die or are attacked 
by mould, should be removed with forceps. The minute vegetable 
growth, so fatal to eggs and even to young fish, is very likely a true 
conferva,t at least- we may judge so from Vogt's description of the 
parasitic plant that attacks the eggs of Coregonus. To avoid it the pre- 
cautions are : 1st, pure running water of the right temperature ; 2d, very 
clean gravel washed in boiling water ; 3d, the use of wood for troughs, 
that is well dried, and free from knots and acid juices ; 4th, the protec- 
tion from dust, dirt and sediment ; 5th, protection from strong sunlight. 
Green discovered this by observing that, where a band of sunshine fell 
from an uncovered window across the troughs, the ova within that limit 
died. A dead ovum may readily be recognized by its dull opaqueness. 
It looks like a drop of tallow. Furthermore the troughs should be 
guaranteed against mice, water-insects and snails. Where sediment 
chances to settle on the ova the water should be stirred with a feather 
until the current has carried off the deposit. If spawn is to be sent 
away, tK^e best time is from twenty to forty days after impregnation, 
when the eyes show through the eggs as two black specks. Take live 
moss, with long fine stems, and wash it till perfectly free from dirt. 
Place a layer of it, while moist, in a tin box with holes in the bottom, 

* The color of the flesh plainly does not depend on the crustacean food which the trout 
gets, according to the theory of Dr. Gilnther. Trout raised in Green's pools and having 
the same chance for food of this kind, are sometimes pink and sometimes white fleshed. 
There is some reason to think this peculiarity is hereditary. 

t This temporary sticking is an extraordinary provision of nature, to enable the eggs to 
cling to the bottom, and resist the current, until the parent has had time to cover it by 
sweeping gravel over it with her tail. It is possible that Vogt was mistaken in suppos- 
ing the eggs of salmonidaj had no viscous coat ; it is perhaps in a soluble form. (Agassiz 
and Vogt in Poissons d'eau douce.) 

J See Kiitzing Fr. R. Phycologia generalis, Plate 11. 



32 RIVER FISHERIES. [Jan. 

place therein a layer of spawn, then another layer of moss, then another 
of spawn, till the box is full. Put on a tin cover firmly and pack the 
box with sawdust in another and considerably larger one. If kept cool 
the spawn will be good for at least fifty days, and it has been thus preserved 
for eighty-five days. The best temperature is about 50*. At over 65® 
eggs suflfer severely. The minimum time for hatching is fifty days,* the 
maximum one hundred and fifty days. Then the little troutling lies 
feebly on its side, and for forty-five days subsists entirely on the gradu- 
ally absorbed yolk-sac, which in nature seems to serve the double end of 
food and of an anchor to hold it down among the gravel. At the end of 
that period the little fish is free, and needs feeding. Now the water 
should be backed up several inches deep in the troughs, and the fish fed 
twice a day with raw beef liver cut as fine as jelly and bruised with 
water, and very slowly given to them so that it may be eaten up clean. 
It is still necessary to keep the troughs perfectly clean, and to maintain 
a constant current. At the end of two months feeding the fry may be 
removed to small pools out of doors, {PL III., jig. 2, m. m.) and at this, 
or a subsequent time, may be sent long distances, in a can of water or a 
tank, {PL III, Jig. 6.) 

The successful growth of the fish now depends on (1) plenty of food, 
(2) proper water of a sufficient depth. A little trout kept in a shallow 
hatching-box, will cease to grow at three or four inches, feed him never 
so much. Water is to be had in plenty, but food is the turning point 
of profit or no profit in fish breeding. The little ones will get enough 
food in a proper pond or brook if simply left to themselves ; but to 
grow the larger fish rapidly, extra food in large quantities will be 
required. Tlie way to get this is the way of Comacchio : to breed 
one fish to feed another ; and to let the first gain its own living from 
insects or water-plants. Near the sea-coast vast quantities of little 
fish may be had for the catching ; among which may be named the 
"friars" {fundulus) that swarm in salt water ditches and 'creeks. 
These scalded and given to trout produce a rapid growth, some getting 
to half a pound and more in a year. There seems no reason why every 
inland fish-breeding establishment should not hatch artificially large 
quantities of small fish entirely as food for the more valuable trout. 
Probably the, cyprinoids (" shiners ") would be the best, because they 
breed rapidly. A certain amount of beef liver could be used to advan- 
tage, but would be too dear and too hard to get for a constant food. 
The shiners would be kept in small ponds, whence the pickerel and 
pouts had been removed, and where they would get their own living. 
The breeding establishments already in existence depend for their profits 

* Mr. Stone has, however, hatched trout in thirty-five days, in water ^i 55^. 



1868.] HOUSE— No. 60. 33 

chiefly on the sale of spawn and young fish. With them this question 
of food for their breeders is not so important. Besides the ponds of 
Seth Green, at Mumford, near Rochester, N. Y., there are those of Rev. 
Livingston Stone, Charlestown, N. H. ; Benj. Kilburne, Littleton, 
N. H. ; J. D. Bridgman, Bellows Falls, Vt., and Mr. J. S. Robinson, 
Meredith, N. H. 

But all these, however creditable, so far as they go, are, in com- 
parison with what should be, mere boys' play. A trout-breeding 
establishment should have five artificial ponds of an acre each, and four 
feet deep. These would hold 1,000,000 of marketable fish. It should 
have two or three natural ponds, of a dozen or twenty acres each, 
where fish could be bred wherewith to feed the trout ; and finally, it 
should have pools for the breeding fish, and hatching-houses in propor- 
tion to the quantity to be raised. If other species were cultivated, a 
proportional number of ponds would be necessary. Salmon for breed- 
ing should be treated like trout. They should be taken in nets (from a 
late run if possible,) and confined in a running stream of some depth, 
and of a proper bottom, wnth shady banks, and with hiding-places. 
From the stream should lead gravelly, covered trenches, suitable for 
spawning beds, into which the pairs of salmon would go in their season, 
and whence they could be taken for breeding. The only difference 
would be that, whereas the trout are kept from year to year, the salmon 
must be returned to the river in order that they might go to the sea. 
Seth Green, who sat two days in a tree to watch the salmon spawn, 
corroborates the account given by Shaw * a quarter of a century ago. 
The nests, or excavations, are made not with the nose, but with the tail. 
Many of the ova are neither impregnated nor covered, and are carried 
down stream where shoals of trout await them. The method of the 
trout is almost identical. The female lies close to the bottom with her 
head up stream, and gently fanning with her tail ; a few inches above 
lies her mate, keeping a sharp look out for all intruders, at whom he 
darts furiously whenever they approach ; even the female rushes at 
them when they are numerous. From time to time she, by a spiral 
contortion of the body, brings her tail with a strong sweep against 
the gravel ; and this, after a while, makes a rough depression or "nest." 
Over this she stays and begins a kind of serpentine motion of the body, 
the object of which seems to be to work the eggs from the ovary into 
the abdominal cavity. Presently the ova are ejected with a convulsive 
tremor of the muscles, and simultaneously the male throws the milt 
into the water. The eggs are covered in part by the current, in part 
by the tails of the fish ; but many are not impregnated at all, and many 
more are swept down stream, where they are eaten by expectant fish. 

* Royal Society, Edinburgh, Vol. XIY., 18W. 
5 



34 RIVER FISHERIES. [Jan. 

The trout themselves, too, come on the spawning beds, and root the 
gravel with their noses, and then fall back, watching for eggs that may- 
be washed out. Trout, however, will not eat their young, if they can 
get other food. 

It may be noticed that trout are here mentioned as if there were but 
one species ( salmo fontinalis ) in our ponds and brooks. This may or 
may not be. Doubtless artificial breeding will throw light on this ques- 
tion before many years have passed. Our trout shows many variations 
even in neighboring localities. Old John Trout, the veteran angler of 
Webster's day, could distinguish unfailingly a fish from Monument River, 
Red Brook, or Marshpee Brook, (all streams emptying near each other 
on the south side of Cape Cod ;) • and that not from color, but from 
shape. The Dublin lake trout of New Hampshire are well known for 
their peculiar delicacy of form.* 

Now it will be the study of intelligent breeders to obtain these differ- 
ent forms, and breed them together ; then, to take their progeny and 
breed them together to see if the second generation be fertile among 
themselves, and to observe all the forms produced by the different inter- 
changes. Well-determined species, too, should be taken ; the salmon 
artificially impregnated by the trout, if this be possible, or the white 
fish tried with the salmon, in order to determine the limits of inter- 
fertility. Such experiments might be continued almost indefinitely, 
and with the greatest advantage to science ! Then some of the little 
land-locked brook trout of Cape Cod should be marked and placed in a 
situation to seek the sea, if they chose so to do ; when retaken, we 
should find out whether they did go to the sea, and whether they proved 
identical with the sea-trout, so called, which there reach a weight of 
3 lbs. or 3^ lbs. These sea-trout come up into the brooks in the middle 
of May, spawn in October, and return lean in November to the sea, 
where they recuperate ; for they are fat in winter, though not highly 
flavored. They go well out, as is phiin from the fact that they are 
occasionally taken several miles from any stream or harbor. The little 
yellowish "natives" remain in fresh water; but these may be only the 
parr form of the same species. 

Artijicial Breeding of Shad. — Early in last summer, Seth Green 
offered to come, at his own expense, and try to hatch the eggs of the 
shad at Holyoke, provided the New England Commissioners would fur- 
nish the necessary apparatus. This man bids fair to prove the Remy of 

* As to color, it counts for little; and it is commonly known that it varies according 
to the hue of the bottom. It is not commonly known, however, that the trout changes 
its tint almost like the chameleon. A tish from a white gravel going suddenly over dark 
weeds, for a few moments stands out as a light spot against an obscure ground, but soon 
it shades off, and in perhaps two minutes, is similar to the new bottom over which it lies. 



1868.] HOUSE— Xo. 60. 35 

this country, not because he has succeeded in hatching a certain number 
of trout, but because he has originality, as well as skill, and large ideas, 
as well as originality. He has a living faith that our rivers, ponds and 
bays may, by artificial breeding, be so filled with fish, that, to use his 
own word?, '* the people can't catch 'em out if they try." With more 
truth than fancy, he says, '• let your State spend a tenth part in jd anting 
fish, of what it spends in planting corn, (that don't pay for the raising,) 
and every poor man may have a fish dinner the year round." The 
newspapers and periodicals have spoken of him, only to say that he is a 
noted sportsman. To be a crack shot, and to throw a fly eighty feet, 
are things of no great matter, but to increase and cheapen the food of a 
whole people, is worthy the devotion of a lifetime. 

Green began his experiments the first week in July. He put up 
some hatching troughs, like those already described, {Plate 11.^ Jigs. 
3 and 5.) in a brook which emptied into the river. Having taken the 
ripe fish with a sweep-seine, he removed and impregnated the ova in 
the way already described for trout. These, to the number of some 
millions, he spread in boxes ; but, to his great mortification, every one 
of them spoiled. Nothing daunted, he examined the temperature of 
the brook, and found, not only that it was 13^^ below that of the river 
(62*^ to 75°,) but that it varied 12° from night to day. This gave the 
clew to success. Taking a rough box, he knocked the botto n and part 
of the ends out, and replaced them by a wire gauze. In this box the 
^^^"i were laid, and it was anchored near shore, exposed to a gentle cur- 
rent that passed freely through the gauze, while eels or fish were kept 
off. To his great joy, the minute embryos were hatched at the end of 
sixty hours, and sv\-am about the box, like the larvae of mosquitoes in a 
cask of stagnant water. Still, though the condition of success was 
found, the contrivance was still imperfect ; for the eggs were drifted by 
the current into the lower end of the box, and heaped up, whereby 
many were spoiled for lack of fresh water and motion. The best that 
this box would do, was ninety per cent., while often it would hatch only 
seventy or eighty per cent. 

The spawn box he at last hit on, is as simple as ingenious. It is 
merely a box with a wire gauze bottom, and steadied in the water by 
two float-bars, screwed to its sides. {PL IL,jigs. 1, 2, 7.) These float- 
bars are attached, not parallel to the top line of the box, but at aa angle 
to it, which makes the box float with one end tilted up, and the current 
striking the gauze bottom at an angle, is deflected upwards, and makes 
such a boiling within, as keeps the light shad eggs constantly free and 
buoyed up. The result was a triumph. Oat of 10,000 ova placed in 
this contrivance, all but seven hatched ! In spite of these delays, and 
of the imperfect means at hand for taking the fish, Green succeeded in 
hatching and setting free in the river, many millions of these tiny fry. 



36 RIVER FISHERIES. [Jan. 

As no way is now known of keeping shad in ponds or pools, they 
must be watched at their breeding grounds, and when the spawn begins 
to flow freely from them, operations may commence. The fishing must 
take place by night, because (near Hadley Falls, at any rate,) no ripe 
females are captured by day ; those taken are all spent, or not yet ready 
to lay. This may be because they are in the deep holes, spawning, or 
because they are above, in the quick water. The seine must not be 
hauled quite ashore, but the bight of it must remain in the shallow 
water, that the fish may be kept alive. Thence they are taken out, and 
the spawn impregnated in a tub, or a large pan of water. Many scales 
will fall in the water, and must be carefully picked out, before the ova 
are distributed in the floating boxes, wherein they may lie about one- 
fourth of an inch deep. The boxes must be lashed end to end, in lines 
of convenient length, and it is well to surround them with a log boom, 
to keep off rubbish brought down by the stream. They should be 
placed conveniently near the shore, in a gentle current, but not so near 
as to risk being left dry by a fall of the river. They will now appear 
as if they had nothing in them, for the eggs are almost as transparent 
as the water itself; but if they turn milky, and look like half-boiled 
sago, they are spoiled. 

The contents are not, however, to be thrown away, without taking 
up some in the hand, when it will likely appear that but a small part 
are addled, while the rest remain transparent. With further progress 
the embryo may, with a weak glass, be easily seen moving in the tgg, 
Avhich then is not so clear, and at the end of sixty hours (with sunshine 
and water at 75°,) the box will be found alive with tiny fry, almost 
transparent, except the eyes, swimming freely, with their heads up 
stream. In confinement they cannot be kept, because the yolk-sac does 
not suffice for their support for more than one or two days. But care 
must be taken to liberate them in a safe place. Green observed that, 
on selling them free among the shallows near shore, the dace {Argyreus) 
and other little fishes rushed to the spot, and commenced jumping at 
them. In the stomach of a dace, he found fourteen shad ^ry. Then, by 
a series of most ingenious experiments, he discovered that the fry, so far 
from frequenting the shallows, like many minnows, made directly for the 
main current in mid river. How different this from the young trouts 
that lie almost helpless for fortj-five days, and then are fain to hide 
behind stones and roots ! Whereas, these minute, transparent, gelati- 
nous things push boldly for the deep, swift current, where they are too 
insignificant to be attacked by the great fishes. Will the physicists tell 
,us what ''correlation and conservation of force" produces this? or will 
the Darwinians set forth how, some millions of years gone, a particular 
^lad fry, finding by accident that he did not get eaten in deep water, 



1868.] HOUSE— No. 60. . 37 

transmitted a deep-water instinct to his children, who thereby flourished, 
while the shoal-water fry got in due time exterminated ! * 

So the fry must be let go in the proper way by towing the boxes into 
mid stream, or by liberating them during the night, when their enemies 
do not feed. In either case, the trap-slide (P/. IL,Jig. 2, d.,) must be 
raised, when they will be carried gradually through the coarse netting 
by the current. This operation must be performed as soon as all the 
ova are hatched out. There ends the nursery care; for we know no 
method of keeping the young till they have gained size and strength. 
What we may hope to avoid is, the enormous loss which the eggs 
themselves suffer, when deposited by the natural method. f 

The ovaries of a full-grown shad (Alosa praestabilis) weigh at the 
spawning season about thirteen ounces, without the membranes. With 
a common lens, three sizes of ova are at once distinguished. The first 
have a diameter of yf^ to j^^ of an inch. These are transparent, and 
ready to be laid ; the second, y*^ to j^^ of an inch ; the third, y§o of 
an inch. These two smaller sizes are opaque; they are still found 
after the fish has spawned, and are the crops ready to mature the next 
year and the year after. This state of the ovary % has its parallel in 
the turtle, and possibly in all of the vertebrata. 

It is scarcely necessary to add that the microscope shows other and 
smaller ovarian eggs. An ovary of the size above mentioned contains 
about 70,000 ova, ready to be laid. Their diameter increases, as soon 
as they are put in water and impregnated, from y^^ to -^^^ of an inch. 
This is by the endosmosis of w^ater between the yolk and the shell 
membrane. § Of the embryonic development, we have, as yet, only an 
imperfect outline to present. Forty-one hours after impregnation, the 
condition of the embryo is, on the whole, in advance of that of coregonus 
on the thirty-third day. |j The under surface, from the nose to the begin- 
ning of the ventral, is in close contact with the yolk, which is composed 
of a great number of rounded divisions, such as are seen in the com- 
plete segmentation of that body, while its surface is flecked with pigment 
stars, {PL L,jig. 1, d.,) of which a less number may be distinguished on 
the forward part of the trunk. That part of the embryo which swings 

* Did it ever occur to anybody that the Darwinian hypothesis was, after all, suggested 
by Lamb's " Origin of Roast Pig? " 

t "With the utmost care to secure every favorable surrounding, Green was never able 
to hatch more than tv:o per cent, on the natural river bed. Only those eggs hatched that 
chanced to catch in an angle of the gravel, where they had the current all about them. 
This does not take into the account those that are not impregnated, or are devoured, or 
covered by mud, &c., &c. 

t Agassiz, L., Contrib. to Nat. Hist, of U. S., Vol- II. p. 489. 

§ The same takes place in a less degree in the egg of Core^-onus (white fish.) (Carl 
Vogt, loc. cit. p. 27, PI. I. fig. 9.) Accustomed only to eggs of trout, Green was much 
astonished to behold the mass of ova swell to near twice its first bulk. 

ii Vogt, loc. cit. PI. 6, fig. 142. 



38 . RIVER FISHERIES. [Jan. 

free makes a spiral half turn, so that the dorsal fin is turned toward, 
instead of from, the yolk-sac. The head, which is pointed in front, and 
flattened, bears no resemblance to that of the grown animal, and it 
would be perhaps fanciful to compare it even to such forms as Petromy- 
zon (Lamprey eel.) A large portion of it is occupied by the eye, which 
fills proportionately at least four times more space than in the adult, 
{jigs. 1, 2, 3. 5.) The choroid coat, not yet closed below, partly encircles 
the crystalline lens, above which may be distinguished a clear space, 
which is a portion of the vitreous humor. The form of the brain may 
already be distinguished, especially when fore-shortened from the front, 
{fig. 3, «.) It is probable that the pectoral fin already exists, but, from 
the extreme transparency of the tissues, its outline could not be caught. 
From the well-marked nuchal bow, {fig. 1, n^ the flattened body tapers 
gradually to a fine point, and is bordered, above and below, by an embry- 
onic dorsal and ventral {fig. 1, e. g^ Avhlch spread into a spatula-like 
caudal fin {fig. 1,/;) and it should be observed, that neither in this 
stage nor in the newly-hatched, {fig. 4, e, fi g,) does there exist any 
unevenness of the margins of these fins, that should indicate their 
approaching separation ; whereas, the newly-hatched salmon {PL III.., 
fig. 1, h, c, d, e,f,) already shows very distinct dorsal, adipose, caudal, 
anal and ventral fins ; and the little Gorego7ius, though less advanced in 
this respect, shows plainly the boundaries of these organs. Near the 
base of the caudal is now to be seen the end of the alimentary canal, 
passing at an angle across the breadth of the fin. {PL I., fig. 1, h.) 
The heart may be observed beating, and the embryo itself moves itself 
round and round within its prison, by a series of convulsive jerks. 
This motion is called by the breeders, *' life in the egg." * 

The specific gravity of the eggs at all stages is very small — barely 
enough to sink them, in still M^ater, — a great contrast to those of the 
trout, which go down almost like shot. 

The newly-hatched young is j^^ of an inch long, {figs. 4, 5.) It 
swims actively by a continuous and rapid vibration of the body, and 
keeps its head to the current, perhaps to get the food that is carried 
past.f The yolk-sac, whose longer diameter, already in the e^g, was 
parallel with the body, now appears still more ovoid in form, {fig. 4, d.) 
The pectoral fin {fig. 4, k,) is easily seen, and the finger-like canals in 
it indicate that its rays are forming. The embryonic, dorsal, caudal and 
ventral fins are continuous one with another, and extend round the 

* In this stage Green succeeded in keeping eggs alive in damp moss for six daj's, in a 
low temperature. But they are very hard to transport long distances, and cannot be 
hatched in cold water. 

t The current carries the fry gradually seaward. Hence it is, that since the erection 
of the Holyoke dam, young shad are no more seen there; because, by the time they are 
large enough to be noticed, they have all drifted lower down the river. 



1868.] HOUSE— No. 60. 39 

whole body, back of the yolk-sac. la the caudal a few faint, radiating 
fibres indicate the formation of rays. The choroid has completed its 
circle, (Jig. 4, h,) and the eye has nearly the outward look of that in 
the adult. Along the course of the alimentary canal, quite to the anal 
opening, (jig. 4, Ju) and over the yolk-sac, the pigment stars are more 
numerous and defined. A little indentation indicates the mouth, which 
lies under the eye, and opens as a curved slit. {Fig. 5, c. Compare 
that of the salmon, PI. III., Jig. 1.) The general mass of the brain 
{PL I., Jig. 4, a,) is easily made out. Along the centre of the body, a 
more translucent stripe indicates the dorsal cord, (Jig. 4, o,) above 
which the range of muscular bundles begins to be distinct (Jig. 4, m.) 

"Within eighty-two hours after hatching, (Jigs. 6, 7,J great develop- 
ment has taken place. The tail, though not forked, has taken on its 
triangular form, and is made up of fine, radiating fibres (Jig. 6,/.j The 
embryonic dorsal and ventral (Jig. 6, e, g,) are reduced in breadth, 
whereby the annal opening (Jig. 6, h,) is brought close to the body, and 
at the point I (Jig. 6, J may be seen the base muscles of the true dorsal 
beginning to form. Along the body the transverse muscles (Jig. 6, m,) 
show themselves distinctly both above and below the lateral line. The 
pectoral fins (Jig. 7, h,) have now their fibres complete, and resemble 
two little flat brushes. The mouth (Jig. 7, c,J is pushing forward 
towards its normal place. It seems to have, in the under lip, a notch, 
perhaps the point of future union of the maxillaries. The yolk-sac 
(Jig. 7, d,) no longer plays an important part, and is reduced to very 
small dimensions. But the most striking change is the development of 
gills, four on a side, and each in its gill-pouch (Jig. 7, ^', ^, z, i.) The 
gills themselves can be distinguished, like little bows, along which run 
their veins and arteries. These, together with the size and position of 
the eyes, give the under surface of the head, rather the look of that of a 
skate embryo than of a shad. 

Such is a hasty sketch of three periods of embryonic life in this 
Alosa. Of the young, at three months, outlines have already been 
given.* It should be added, that their jaws are, at this age, armed with 
fine, sharp, slightly curved teeth, nearly continuous along the upper 
maxillary and intermaxillary pieces, with a few at the point of the lower 
maxillaries. None, apparently, on the vomer. These are necessary 
for the capture of the water beetles that then constitute a part of their 
food. The jaws of the adult are, as is well known, smooth, f 

* Eeport for 1866. Plate, fi^s. 1, 2, 3. 

t This brings to mind that the eternal "white-bait" controversy has recently come up 
in England, in its usual crude form. The fish is a small cliipeoid that comes in shoals, at 
certain seasons, into the Thames and some other English rivers; and, when fried, fur- 
nishes a poor excuse for good wine. Periodically, there is somebody who begins to 
wonder what the white-bait really is. So, in the "Pall Mall Gazette; " of October 29th, 



40 ' RIYER FISHERIES. [Jan. 

Of the further growth of the shad, we cannot as yet speak with cer- 
tainty, although there are pretty good grounds for an opinion. Mr. 
Frederic Russell, late commissioner from Connecticut, first called atten- 
tion to some small AIoscb, about nine inches long, called by the fisher- 
men, " chicken shad," or " Connecticut river alewives." He was led to 
consider them partly grown fishes, from the fact that they all were 
males. Of many hundreds examined, only one female could be found, 
and there the ova were not developed. The fish taken for artificial 
breeding, at Holyoke, were then compared, and it was found that they 
were of three, if not of four distinct sets or sizes. The smallest were 
the "chicken shad," and were all males;* the next were but half the 
size of the largest, and were males and females ; so also were the larg- 
est of all. Hence we may at least guess, that the young of the autumn 
go down, as minnows of four inches, to the sea. The next spring the 
males are fecund, (so, too, in the salmon parr,) and seek the fresh water, 
urged by the sexual instinct, and are the chicken shad or yearlings. 
Not so the females, which, not yet sexually developed, remain in the 
salt water or in the estuaries. When two years old both sexes are 
fecund and seek the river together. These are the half-grown or two- 
year-olds. The third season they are large fish, and may be termed 
three-year-olds. But these three-year-olds have, in the ovary, at least 
two crops of eggs ready, though undeveloped, for the next two seasons. 
Nature does not prepare her seed only to die ! Old fish become barren, f 
These two crops of eggs are to be laid, and for that the fish must live 
at least two years more. The impression that prevails among fisher- 
men, both here and in Europe, that shad die after spawning, the first 
year, comes only from the familiar fact that fishes are in meagre con- 
dition after spawning, and that some of the weaker probably do die, 
and are seen floating. There was a similar idea about lamprey eels, 
which was to the effect that they made fast by their sucker and then 
slowly decayed. 

Mr. Francis Francis comes out with a column and a half of fine print, to say, that he once 
caught some little fishes, that to his mind, were young herring; and that they looked, 
according to his memory, a good deal like white-bait. ^V^^o, white- bait are young her- 
ring! He is followed by two or three other correspondents with equally important 
remarks. Now it may be that white-bait are young herring, but Mr. Francis does not 
prove it. Therefore, we must be content with Valenciennes, (Cuvier et Valenciennes 
Hist. Nat. des Poissons, vol. xx. pp. 30 and 341, 1847,) who, thirty years ago, declared that 
the white-bait was not only not a young herring, ( Clupea herengus,) but was even of a 
different genus, {Rogenia alba.) And, as he was one of the best European ichthyologists, 
and as he devoted two hundred and twelve pages to the detailed consideration of the 
former fish, his authority ought to stand, until somebody has examined the question as 
carefully as he. 

* This sexual peculiarity is well known also to some of the Merrimack fishermen. 
Consult von Siebold. Siisswasserfische. 



cvii 



>t'l 






■"%■ 



Q 



J? 



t :J- 



at' 



.^'^ ..^ 



M ^ 



/j^?..^s^^; 



rf *kJi 



rO 









1868.] HOUSE— No. 60. 41 



EXPLANATION OF PLATES. 



Plate I. — Embryos of the Shad. 

a, brain ; b, eye ; c, mouth ; d, yolk-sac ; e, embryonic dorsal fin ; /, caudal ; g, embry- 
onic ventral; h, anal opening; i, i,i, i, gills; k, pectoral fin; /, muscles of the dorsal fin; 
m, transverse muscles of the body; n, nuchal bow; a, dorsal cord. 

Fig. 1. — Embryo, 41 hours old, in the egg; from life. 

Fig. 2. — Head of the same from above. 

Fig. 3. — Head of the same from the front. 

Fig. 4.— Embryo, just hatched; from life. 

Fig. 5. — Head of the same, seen diagonally. 

Fig. 6. — Tail and hind body of a young fish 82 hours after hatching. Alcoholic. 

Fig. 7. — Head of the same from below. All the figures are enlarged 17 diameters. 

Plate H. 

Figs. 1, 2, 7. — Green's patent hatching box seen from the side, end and bottom. Scale, 
l-20th. a, side floats, 3.4" long; 2" by 3" square, set with screws, b, 
bottom cross-bar, bevelled, to throw the current upward, c, wire-net bot- 
tom, 14 wires to an inch. <?, trap in hind end for escape of young fish, 
covered by wire-net, 8 to an inch, and with a covering slide, e, anchoring 
cord, y, water-line, g^ spawn. 

Fig. 3. — Upper part of a hatching-trough. The water comes by a conduit, o, through 
strainers, 6, 6, b, (see PL III., Fig. b, a, )hy a sluice, c, to the supply trough, 
d, whence it is fed by a sluice, e, to the hatching-trough, J", g, wall of 
hatching-house, h, cross-bar separating two squares, (See Fig. 5, c.) 

Fig. 4. — Horizontal screen, to stop trout from passing up a fall. 

Fig. 5.— Plan of a hatching-house. Scale, l-120th. a, water conduit, b, strainers. 
c, hatching-troughs, d, door, e, e, windows. /, stove, g, supply trough. 
h, space cut out of floor for escape of water. 

Fig. 6. — A current wheel, to stop fish from running up stream; while, like Fig. 4, it 
allows the passage of floating food. 
6 



42 RIVER FISHERIES. [Jan. 

Plate III. 

Fig. 1. — Young salmon just hatched, (enlarged from Agassiz's Poissons d'eau douce, PI. 
7, Fig. 170.) a, pectoral fin. b, dorsal, c, adipose, d, caudal, e, anal. 
/, ventral, f/, yolk-sac. 

Fig. 2.— Trout ponds and breeding apparatus, a, grating. (See Plate JI., Fig. 4. J 
ft, i, spawning beds, c, current wheel. ( S^e Plate II., Fig. G.) c?, dam to 
make a supply pond, e, e, c, water conduits, y, strainers, g, house. 
h, h, streams to fish pools, h, h, fish pools. I, hatching-house, m, m, pools 
for young, n, booms to direct floating food to the ponds, o, o, outlets. 

Fig. 3. — Position of fish in taking the spawn. 

Fig. i. — Section, to show details of Foster's flshway. a, a, side timbers, 4" by 7". 
&, plank floor, c, 10-inch spikes driven from timber to timber, and into the 
sill, d, which is 5" by 6". e, e, bulk heads. /, /, openings for water. 
<7, g, outer planking of two-inch plank nailed with six-inch spikes. 

Fig. 5. — Section of a trough, with a screen, a. h, gate, c, sluice-way. 

Fig. 6. — Tank, to transport live fiuh, with a pump to aerate the water. Within, at the 
point, a, may be a basket for ice. 

The most important details, both in text and plates, about trout breeding, have been 
taken from the establishment of Seth Green. 



1868.] HOUSE— No. 60. 43 



[B.] 
LEGISLATION 



By the law of tliis Commonwealth, all persons who may build dams 
on streams annually frequented by fish, do so under an obligation to 
keep open sufficient fish-ways for the passage of such fish ; unless they 
are relieved by a special Act of the legislature. 

The following is the legislation which concerns this Report more 
particularly. 

[Chap. 62.] 
An Act to protect the Shad Fishery in the Connecticut River. 
Be it enacted^ Sfc, as follows: 

Sect. 1. No person shall set, draw or sweep any seine or net, the meshes 
of which are less than two and one-fourth inches square when new and dry, 
for the purpose of catching shad or any other fish in that part of the Con- 
necticut river which is within the limits of this Commonwealth, and below 
the dam across said river at Holyoke, between the first day of May, and the 
fifteenth day of July, during each year. 

Sect. 2. Every person violating the provisions of the preceding section, 
shall be liable to a fine of not less than ten nor more than fifty dollars for 
each offence, to be recovered in any court competent to try the same ; one- 
half of said fine to inure to the use of the town in which the offence shall be 
committed, and the other half to the person who shall prosecute therefor. 

Sect. 3. This act shall take effect upon its passage. \_Approved March 2, 
1864. 

[Chap. 238.] 
An Act concerning the Obstructions to the passage of Fish in the Connec- 
ticut and Merrimack Rivers. 
Be it enacted^ ^c, as follows : 

Sect. 1. The governor, by and with the advice and consent of the coun- 
cil, is hereby authorized to appoint two persons to be commissioners of fisher- 
ies in the Merrimack and Connecticut rivers, who shall hold said office for 
the term of five years, unless sooner removed therefrom. And in case of any 
vacancy in said board, the governor shall have power to fill the same. 

Sect. 2. Said commissioners shall forthwith examine the several dams on 
said rivers in this Commonwealth, and shall, after notice to the owners of 
said dams, determine and define the mode and plan upon which fish-ways 
shall be constructed suitable and sufficient in their opinion to secure the free 
passage of salmpn and shad up said rivers during their accustomed seasons. 



44 RIVER FISHERIES. [Jan. 

Sect. 3. It shall be the duty of the commissioners appointed under this 
act, when they shall have determined upon the method and plan for such 
fish-ways, to submit a full and specific statement and description of the same 
to any board of commissioners empowered to act by the State of New Hamp- 
shire, upon the same or similar subjects, for their approval. 

Sect. 4. If any plan so submitted shall be approved by the said com- 
missioners for the State of New Hampshire, the commissioners under this act 
shall forthwith upon such approval being expressed, furnish a copy of the 
plan adopted for each dam to the proprietors thereof, and shall file a copy of 
each of such plans in the office of the secretary of the Commonwealth, with 
an affidavit of the "fact that the same has been furnished to said proprietors, 
which affidavit shall be full proof of the facts therein stated. 

Sect. 5. If the several proprietors of said dams shall consent to construct 
said fish-ways according to the several plans adopted for their respective dams, 
at their own expense, the commissioners under this act may agree with the 
proprietors of the several dams so to do. And when the same shall have 
been constructed within such reasonable time as said commissioners shall pre- 
scribe, and according to said plans, with such minor variations therein as said 
commissioners shall approve, the said commissioners shall certify said con- 
struction to the secretary of Commonwealth, and the same shall for the 
period of five years from the passage of this act be taken and deemed as in 
lieu of the fish-ways, which said proprietors respectively are now required by 
law to keep and maintain over, at or around their respective dams. But said 
proprietors respectively shall be required to keep said fish-ways on their 
respective dams in good repair, and to maintain the same for the period of 
five years from the passage of this act to the satisfaction of said commission- 
ers ; and during the period of said five years the liability of said proprietors 
respectively to build and maintain the fish-ways now by law required of them 
shall be suspended. 

Sect. 6. When said fish-ways shall have been constructed as aforesaid, 
the commissioners under this act shall prescribe in writing the times when 
the same shall be kept open and unobstructed, with power to change such 
times as they may deem judicious. And a copy of such prescriptions shall 
be served on each of such proprietors, and the certificate of said commis- 
sioners of the manner in which the same has been served shall be full proof 
of the fact. 

Sect. 7. If any proprietor of any dam shall refuse or neglect, for the 
period of thirty days from the time said commissioners shall have furnished 
said proprietor with the plan, as herein before provided, to agree with said 
commissioners for the building at, over or around his dam of the fish-way 
prescribed by the plan furnished such proprietor by said commissioners, then 
said commissioners shall be authorized to contract in behalf of this Common- 
wealth for the construction of the fish-way at, over or around the dam of 
said proprietor so refusing or neglecting. And said commissioners shall there- 
upon cause such fish-way to be constructed with all reasonable despatch. 
And the expense thereof shall be a charge against the owner of such dam, 
and the same may be recovered of said proprietor In an action of contract in 
the name of the Commonwealth, with costs and twelve per cent, interest on- 



1868.] HOUSE— No. 60. 45 

the amount of such expense from the time when the same shall have been 
demanded of such proprietor by said commissioners. 

Sect. 8. Whenever,- in the construction of any such fish-way, the 
property of any person not liable by law to provide a suitable and sufficient 
fish-way at, over or around such person's dam, shall be taken for the purpose 
of such fish-way, the said commissioners shall, upon the application in writing 
of the person aggrieved, assess a reasonable compensation therefor, to be paid 
by the Commonwealth. And any person aggrieved by such assessment shall 
have the right to have such compensation determined by a jury, in the man- 
ner provided by the General Statutes for the assessment of damage occasioned 
by the laying out of highways. 

Sect. 9. Said commissioners shall have power to contract with the pro- 
prietor of any dam on either of said rivers, for the suspension for five years 
from the passage of this act of the liability of said proprietor to construct 
at his own expense any fish-way at, over or around his said dam, upon the 
payment by said proprietor to the treasurer of the Commonwealth of such a 
sum of money as said commissioners shall deem reasonable, and a copy of any 
such contract, attested by said commissioners, shall be filed in the office of 
the secretary of the Common Avealth. 

Sect. 10. Said commissioners shall have power to contract with the 
Essex Company for the construction of the fish-way prescribed by said com- 
missioners over the dam of said company, at Lawrence, by said company, at 
an expense to the Commonwealth not exceeding seven thousand dollars, the 
said Essex Company to pay the expense of such building over and above the 
said amount so to be paid by the Commonwealth. 

Sect. 11. The compensation of each of said commissioners shall be 
determined by the governor and council. 

Sect. 12. The commissioners appointed under this act shall have power 
to construct, or to contract for the construction of, such appliances and struc- 
tures as they may think essential or useful for the passage of the fish herein 
named up and down said rivers, and for their protection in such passage. 

Sect. 13. Said commissioners may in their discretion delay the definite 
construction of fish-ways on the Connecticut river, until they shall be satis- 
fied that such legislation has been adopted by the State of Connecticut as 
shall in their opinion be necessary to secure the free jjassage of the fish above 
named through the part of said river running through said State of Connecticut. 

Sect. 14. There shall be appropriated and paid from the treasury of the 
Commonwealth a sum not exceeding seven thousand dollars, to defray the 
expenses of the commissioners herein created and of constructing the fish- 
ways herein provided for. 

Sect. 15. Any person who shall neglect or refuse to keep open or main- 
tain any fish-way at the times prescribed by the commissioners under this act, 
shall forfeit the sum of fifty dollars for each day's neglect or refusal so to keep 
open or maintain said fish-ways, to be recovered by indictment in the county 
where said dam or a part thereof, is situated, one-half thereof to the use of the 
complainant and the other half to the use of the Commonwealth. 

Sect. 16. This act shall take effect upon its passage. [^Approved May 15, 
1866. 



46 EIVER FISHERIES. [Jan. 

[Chap. 249.] 
Ax Act for the protection of Trout and Black Bass. 
Be it enacted, v^'c, as folloics : 

Sect. 1. Whoever takes or catches any trout in any rivers, streams or 
ponds, between the twentieth day of September and the twentieth day of 
!March, or within the time aforesaid sells, buys or has in his possession any 
trout so taken within this state, shall forfeit one dollar for each trout so caught 
or taken, sold, bought or had in possession. 

Sect. 2. "Whoever shall take or catch any fish called black bass in any of 
the ponds within the limits of this Commonwealth, from the first day of 
December to the first day of June, or at any time, except with hook and line, 
shall forfeit a sura not less than two nor more than twenty dollars for each 
offence, to be recovered by prosecution before any court competent to try the 
same.* 

Sect. 3. In all prosecutions for forfeitures under the provisions of this 
act, the fact of sale, purchase or possession shall be evidence that the trout 
or black bass so sold, purchased or had in possession, were taken within this 
state. \_Approved May 22, 1866. 

.[Chap. 187.] 
Ax Act to authorize Towns and Cities to establish Herring Fisheries. 
Be it enacted^ cVc, as follows : 

Sect. 1. The mayor and aldermen of any city, and the selectmen of any 
town, in this Commonwealth, are hereby empowered to authorize, in writing, 
any three or more persons and their associates, to organize a corporation, 
with a capital stock of not less than one thousand, and not more than five 
thousand dollars, for the purpose of opening outlets, canals or ditches, for the 
introduction and propagation of herrings and alewives, in the ponds, creeks 
and rivers within the limits of such town or city, as aforesaid ; and said corpo- 
ration, when organized, shall have all the powers and privileges, and be sub_ 
ject to all the duties, liabilities and restrictions, set forth in the sixty-first 
chapter of the General Statutes, and in all general laws which now are or 
may hereafter be in force relating to corporations. 

Sect. 2. Said corporations may purchase and hold real estate necessary 
for the purpose of opening outlets, canals, sluiceways or ditches", for the pas- 
sage of herring and alewives to and from said ponds and other waters. 

Sect. 3. Towns and cities, in their corporate capacity, may open ditches, 
sluiceways or canals, into any ponds within their limits, for the introduction 
and propagation of herrings and alewives, and for the creation of fishery for 
the same ; and the land for opening such ditches, sluiceways or canals, within 
such town or city, may be taken under the provisions of the statutes which 
now regulate and limit the taking of land for highways and other purposes. 

Sect. 4. Any fishery so created by any town or city shall be deemed to be 
the property of such town or city, and such town or city may make any proper 
regulations concerning the same, and may lease such fishery for a period not 
exceeding five years, upon such terms as may be agreed upon between such 
town or city and the lessees of the same. And any town may lease for a 

* Eepetition of Chap. 59, Laws, 1862. 



1868.] HOUSE— No. 60. 47 

like period, and upon like terms, any fishery now owned by such town, 
or any public fishery which has heretofore been regulated and controlled by 
such town. 

Sect. 5. No person without the permission of such town or city, or of the 
lessees of such fishery in any fishery created by such town or city, or in any 
fishery created by any corporation, without the permission of said corporation, 
shall take, kill or haul on shore any herrings or alewives, in any fishery so 
created by any town, city or corporation, for the introduction and propagation 
of herrings or alewives. 

Sect. 6. Whoever violates any of the provisions of the preceding section, 
shall forfeit and pay a sum not less than five nor more than fifty dollars for 
each oifence, to be recovered by prosecution before any court competent to 
try the same. 

Sect. 7. All prosecutions under the preceding section shall be instituted 
within thirty days from the time the ofience Avas committed. 

Sect. 8. Nothing contained in this act shall be held to impair the rights 
of any person under any law heretofore passed, or to deprive any person of 
any right under any contract now existing, or to authorize any town, city or 
corporation to enter upon or build any canals or sluiceways into any pond 
which is the private property of any individual or corporation. 

Sect. 9. This act shall take effect upon its passage. ^^Approved April 25, 
1866. 

In this Act the word herring ought to be used (if at all) as identical 
with aleicife^ which fish is wrongly called herring in some places. But 
the true herring is an open sea and bay fish, and does not frequent fresh 
water. 

[Chap. 344.] 
An Act to regulate Fisheries. 
Be it enacted, §*<;., as follows: 

Sect. 1. The commissioners of fisheries appointed under chapter two 
hundred and thirty-eight of the acts of the year eighteen hunnred and sixty- 
six, in addition to their powers and duties under said act, are hereby author- 
ized to examine all the dams upon rivers in this Commonwealth over and 
around which the proprietors are now required by law to keep and maintain 
fish-ways, and said commissioners shall determine whether said fish-ways are 
suitable and suflicient for the passage of such fish as are found in said rivers ; 
and if, after inspection, the said commissioners shall find said fish-ways are 
unsuitable or insufficient for the passage of, fish, or are out of repair, or are 
not kept open at suitable times, they shall give notice to the proprietors of 
said dams of any defect in their fish-ways, or that the fish-ways are not kept 
open the proper time. And said commissioners shall further, in writing, pre- 
scribe the times for keeping open and unobstructed said fish-ways, and what 
repairs may be necessary, and what changes, if any, should be made for 
improving said fish-ways. 

Sect. 2. Any person or corporation who shall neglect or refuse to keep 
open or maintain any fish- av ay at the times prescribed by the commissioners 



48 RIYER FISHERIES. [Jan. 

under this act, shall forfeit the sum of fifty dollars for each day's neglect or 
refusal so to keep open or maintain said fish-way, to be recovered by indict- 
ment in the county, where said dam, or any part thereof, is situated, one- 
half to the use of the complainant and the other half to the use of the 
Commonwealth. 

Sect. 3. There shall be appropriated and paid out of the treasury of the 
Common^vealth a sum not exceeding ten thousand dollars, to defray the 
expenses of the commissioners, first, in restocking the rivers of Massachusetts 
with shad, salmon and alewives ; second, in restocking the ponds in this 
Commonwealth, for the purpose of propagating black bass and other fish. 
[^Approved June 1, 1867. 

[Chap. 289] 

An Act to regulate Fishing in Merrimack River, and for other purposes. 
Be it enacted, Sfc, as follows : 

Sect. 1. No person shall fish with a seine in Merrimack river, nor in 
any manner take or catch shad, salmon or alewives in said river, until the 
fifteenth day of April, in the year eighteen hundred and seventy-one, under 
penalty of the forfeiture of the seine and of five dollars for each shad or 
alewife and fifty dollars for each salmon taken : provided, that the fish com- 
missioners shall be allowed from time to time to take such fish as may be 
required to re-stock the Merrimack or any other rivers. 

Sect. 2. No person shall fish within four hundred yards of any fish-way 
on JMerrimack river, nor trespass within the limits of the same, under a 
penalty of fifty dollars. 

Sect. 3. The fish commissioners are hereby empowered to cause any 
tributaries of the Merrimack river to be opened to the passage of shad, 
salmon and alewives, by directing the proprietors of dams in such tributaries 
to build suitable fish-ways over their dams. 

Sect. 4. The mayor and aldermen of any city and the selectmen of any 
town bordering on the Merrimack river shall appoint one or more suitable 
fish-wardens and fix their compensation, to see to the execution of the pro- 
visions of the first and second sections of this act. 

[^Approved JSlay 31, 1867. 

[Chap. 149.] 
An Act for the re-stocking of Mystic River and its tributaries with Fish. 
Be it enacted, ^-c, as follows: 

Sect. 1. The right to take alewives or shad from Mystic river or its 
tributaries, or from Mystic pond, shall be and hereby is suspended for the 
period of five years next ensuing, and no net, seine or weir shall be set 
therein during said period. 

Sect. 2. Any person violating the provisions of this statute shall forfeit 
one dollar for every alewife or shad so taken. 

Sect. 3. All prosecutions under this act shall be commenced within 
thirty days from the time of committing the offence. 

Sect. 4. The several " committees for the preservation of fish " of the 
towns of Medford, Somerville, "West Cambridge or Winchester, may remove 



1868.] HOUSE--NO. 60. 49 

and destroy any and all neta, seines or weirs found in said waters during the 
said period of five years. [Appj-oved April 13, 1867. 

The following is the Act of New Hampshire, and it has been fol- 
lowed by another, prohibiting the taking of shad and salmon in the 
Merrimack : — 

*' That if any person shall erect or maintain any dam or weir upon the 
Connecticut or Merrimack rivers, or upon the Pemigewasset or Ammon- 
oosuck or "\Yinnij)isiogee rivers, or Baker's river, without providing a suitable 
fish-way over or through the same, which shall be approved in writing by the 
Fish Commissioners, and be kept open during the months of May and June, 
in each year, he shall forfeit and pay, for each day's continuance of said dam 
without such fish-way, the sum of ten dollars, to be recovered by indictment, 
for the use of the county in which the ofience is committed. Provided, that 
this law shall go into effect whenever, and not before, suitable fish-Avays for 
the passage of sea-fish over the dams on said river or rivers, below the bound- 
ary of this State, shall have been commenced ; which fact is to be determined 
by the proclamation of the governor." \_Approved July 1, 1865. 

The following is the Act of Connecticut touching the investigation by 
the Coast Survey ; also the Act referred to in this Report, and which 
regulates the fishing : — 

[Pra-aie Acts and Resolutions of the General Assemhhj of the State of Connecticut^ 
Matj session, 1867. Page 254.] 

" Resolved hy this Assemhhj, That the fish commissioners who may be 
appointed by His Excellency the Governor be, and are, hereby authorized to 
take steps necessary to procure information through the superintendent of 
the United States Coast Survey, in all matters pertaining to the fishing 
interest ; to learn, as far as possible, what general laws govern fish along our 
coast in regard to propagation, migration, &c. ; provided, however, that the 
investigation of (the) same shall not be attended with any special outlay 
from the state treasury." \_Approved July 27, 1867. 

» 

[Chap. 111.] 
Ax Act In addition to " An Act for encouraging and regulating Fisheries." 
Be it enacted, ^'c. ; 

Sect. 1. Xo person shall take from the Connecticut river any shad, at any 
other time than between the fifteenth day of March and the fifteenth day of 
June in each year ; and no person shall set or draw any net or seine for the 
purpose of taking fish in said river, at any other time than between the rising 
of the sun on Monday morning and the setting of the sun on Saturday even- 
ing of each week ; and every person who shall at any other time, take any 
shad, or set or draw any net or seine, in said river, or aid or assist therein, 
shall forfeit the sum of one hundred dollars to the treasury of the state ; pro- 
vided, that nothing in this section shall apply to taking of fish by order of the 
commissioner, for the purpose of artificial or natural propagation of the same. 
7 



50 RIVER FISHERIES. [Jan. '68. 

Sect. 2. No person shall take from the Connecticut river, any salmon, 
before the fifteenth day of March, A. D. 1872, and any person so taking 
salmon, shall pay to the treasury of the county where such offence is committed 
a fine of twenty dollars for each fish so taken. 

Sect. 3. All complaints for violation of this act, and of the act to which 
this act is an addition, may be made to the superior court by the state's 
attorneys of the several counties where the offences are committed, and where 
the nuisances exist ; and whenever the superior court is not in session, such 
state's attorneys may make complaint to a justice of the peace in any town 
adjoining the water at the place where such offence is committed, and such 
attorney shall receive the same fees for services as for trials in superior court, 
which fees shall be taxed as part of the costs of prosecution. 

Sect. 4. For the purposes of this act and of all acts regulating and 
relating to fisheries, the rivers, streams, coves, inlets and bays and sounds, 
and all parts thereof, within the jurisdiction of the state, shall be deemed to 
be entirely in either county and in either town adjoining said waters, at a 
place v/here any violation of this act is committed, and the state's attorneys 
sheriffs and deputy sheriffs of said counties respectively, and the constables 
and justices of the peace of said towns respectively, shall act in relation 
thereto, in the same manner as though said river was entirely in the county 
to which said sheriffs, deputy sheriffs and state's attorneys belong, or in the 
town to which said justices of the peace or constables belong. 

Sect. 5. The governor shall appoint three commissioners, who shall hold 
office for one year, and until their successors are appointed, and whose duties 
shall be to make complaints of all violations of the acts relating to fisheries, 
to the proper informing officer, to consider the subject of the introduction, 
protection, and culture of fish in our waters, to co-operate with fish commis- 
sioners of other states, and to make report of such facts and suggestions as 
may be material to the legislature. 

Sect. 6. Such commissioners shall receive for their services, the sum of 
three dollars per day and their actual disbursements while employed in such 
official duty. 

Sect. 7. The limitation of the time of taking shad and salmon in the first 
and second sections of this act, shall not take place until the legislature of 
Massachusetts at its next session shall prescribe the same limitations to the 
catching of shad and salmon in said river as are contained in said sections. 
All parts of the act to which this act is an addition and inconsistent herewith, 
are hereby repealed. lApproved July 26, 1867. 



SENATE No. 3. 



REPORT 



COMMISSIONERS OF FISHERIES, 



FOR THE YEAR ENDIXG 



JANUAEY 1, 1869 



BOSTON: 

WRIGHT & POTTER, STATE PRINTERS, No. 79 MILK STREET, 

(CoK^'ER OF Federal Street.) 

1869. 



\ 



'^ 



tHoinmonaiealtl) of itla00acl)usctts. 



REPORT 



The Commissioners of Fisheries appointed under chapter 838 
of the Acts of 1866, beg leave respectfully to present their 
Third Annual Report. 

FlSHWAYS. 

(1.) At Holi/oke. — Another year has ended in disappoint- 
ment as to this important pass. At its last session the legisla- 
ture appropriated $12,000* for the erection of this structure, 
in order that no delay might come from the disputed liability 
of the Holyoke Water Power Company. 

It was plain, that, if the Commissioners at once began the 
fishway, (and trusted to the courts to show in the end who 
ought to pay for it,) the Water Power Company might see fit 
to procure an injunction which would greatly delay the work. 
The legal advisers of the two parties debated this matter, and, 
with as much speed as is consistent with the profession, came 
to an agreement that the directors of the company should for- 
mally vote to waive notice, and to refrain from an injunction, 
trusting entirely to the courts for a decision of their case. It 
was in June that the appropriation of $12,000 was made ; but 
already in May the Commissioners had obtained a very detailed 
opinion from distinguished counsel, touching the legal obliga- 
tion of the Water Power Company to build at their proper cost 
a suitable fishway over their dam. After furnishing plans and 

* General Resolves, 1SG8, chap. 53. 



4 RIVER FISHERIES. [Jan. 

models approved by the New Hampshire Commissioners for the 
satisfaction of the company, the Commissioners at last (in the 
beginning of August) received notice that the company's direc- 
tors were about to vote the necessary waiver. On the strength 
of this, men and material were got together at the dam, when, 
suddenly, the company's agent reported that the dam was soon 
likely to be in condition to require no fishway, seeing that it 
was full of holes and promised to go off with the next freshet ! 

It was a matter of importance. Several millions worth of 
property were dependent on the power given by this dam. The 
Water Power Company, caught in the eleventh hour, was at its 
wits' end, and summoned Mr. J. B. Francis, who, like a skilful 
physician, is always called to patients in extremis. He advised 
the making of a great apron, or inclined plane, reared against 
the face of the dam. In their distress the company and the 
mill-owners appealed to the Commissioners to give up the men 
and the lumber then ready for the fishway ; and the superin- 
tendent in presence of two directors, and with their consent, 
made verbally the following proposition : — 

(1.) To take all work-people and material, without expense 
to the Commissioners. 

(2.) To give the Commissioners a right to build the fishway 
in the proposed extension of the dam ; and 

(3.) To allow the said fishway to enter the canal on the 
east bank of the river, and to regulate the water for the same 
through the canal gates in such manner as the Commissioners 
and the agent of said company could agree upon. 

This agreement was, on the 27th of August, approved by 
both Commissioners for several good reasons, but principally 
because the alteration in the dam would so change the over-fall 
that it would be next to impossible to say beforehand where the 
foot of the fishway should be placed. As the peril of the 
moment demanded despatch, the men and material were at 
once turned over, with the understanding that the agreement 
should immediately be signed by the parties. But although 
the company displayed singular swiftness in taking anything 
that would help their work, they experienced an extraordinary 
difficulty in " getting a meeting of the directors " when there 
was question of granting anything in return ; and it was the 
middle of November before a regular document could be pre- 



1869.] SENATE— No. 3. 5 

pared to their mind. This document though of several pages 
was easily evaporated into the following caput mortuum : " We 
give you the privilege of putting the head of the fishway in the 
canal and of regulating the water through its gates, — if it suits 
our convenience ; otherwise, not." The Commissioners believe 
that the agent of the company intended, so far as his influence 
went, to fulfil the verbal agreement, but he has doubtless been 
overruled by the more cautious and distrustful directors. 

In the absence, therefore, of any legal papers, the above 
simple statement must suffice. And it only remains to reiterate 
the language of the last report. " If the company has the 
law," (which it probably has not,') " one of our legislatures has 
put this Commonwealth in a position to be thwarted by a water 
power company whenever the Commonwealth should seek to 
render an act of simple justice to the States of New Hampshire 
and Vermont by giving free passage to the migratory fish of the 
Connecticut River." 

(2.) On the Concord River. — Under authority of chapter 289, 
section 3, Acts of 1867, the Commissioners have caused this river 
to be opened to migratory fishes. The dam-owners have shown 
an excellent spirit, and have constructed the required fishways 
promptly and in the most faithful manner. 

(3.) On the Ipsiuich River. — All dam-owners as far up as 
the junction of Noyes Brook, and thence through this brook to 
Suntaug Pond, have been notified to build proper passes ; and 
this has already been done by most, or by all, of them. 

(4.) At Laiorence. — This difficult fishway has successively 
received many improvements, and promises next spring to offer 
an excellent passage to the fish. Although there seemed no 
great likelihood that fish bred beloiu the dam would attempt to 
surmount it,* yet during the past season great numbers of 
alewives and of other fish might be seen vigorously breasting 
the current ; and of these a good many seem to have passed 
into the mill-pond above. That the Lowell fishway is an entire 
success admits of no doubt, for great shoals of young shad 
(alewives too, probably,) were seen above that fishway, on their 
journey towards the sea ; and their presence is in no wise to be 
accounted for by the very limited number that were artificially 
hatched in Lake Winnipisseogee. 

* Report for 1865, p. 27. 



6 RIYER FISHERIES. [Jan. 

(5.) In general, some improvements and hints in construct- 
ing fishways deserve attention. Wiierever there is a rush of 
water the fish are attracted, and it is important that they should 
not be diverted from the mouth of the way by strong currents 
occasioned by race-ways or the over-fall of the dam, or of the 
waste-way. 

On small streams, where the fishway takes the form of a 
trench, passing round the dam and emptying a good way 
below it, the stream may be closed by wing walls and a grating 
just above the mouth of the fishway, whereby all fish coming 
up are shut off from false currents and are directed to the pas- 
sage round the dam. Where water is scarce, and where ale- 
wives and trout are the only fishes expected, a very narrow pas- 
sage may be made to answer all purposes. A simple trough, 
eight inches wide and six deep, with openings four inches wide 
in the bulkheads, has been known to give passage to great 
quantities of these fishes. Too much stress cannot be laid on 
the necessity of having a strong rush of water from the foot or 
mouth of a pass : for it is this current, more than anything 
else, that guides the fish. 

Fishways. 

(1.) Of the Aleivife QAlosa tyrannus}. — This little herring, for 
ease of cultivation, and for the certainty and abundance of the 
crop, exceeds all of our migratory fishes. Along our sea-coast, 
and especially on Cape Cod, it meets with a ready sale, either 
as food or as bait for the cod fishery. Moreover, there are 
ancient customs connected with its capture that make it dear to 
our seaside people. The Cape Cod folks call it invariably 
" herring," and are very particular about the name (perhaps in 
the way that the Virginians insist on calling corn whiskey 
"brandy"). At any rate, one old gentleman declared before 
a legislative committee, that, " unless he could call 'em herrin' 
he didn't want to eat 'em." 

In many of the towns this fishery is regulated by special Act,* 
and the right to take alewives is sold annually at auction, sub- 
jected, however, to various conditions, e. g., that they be sold 
at a stated price, and only to inhabitants of the town ; that 

* See Appendix C., passim. 



1869.] SENATE— No. 3. T 

every widow be entitled to one barrel gratis ; that the fishery 
take place only on certain days in the week, etc., etc. The 
fishing place is always at a dam, or some other obstruction, 
where the fish are crowded together, and may either be thrown 
out with a large dip-net, or fall of themselves into a net 
stretched on a conical frame, which closes the outlet of the fish- 
way, and which is called a set-net. The netters recognize 
several sorts and several " runs " of alewives. The river her- 
ring is a large variety not much esteemed, and supposed to 
spawn in tidal water. These are alwajs most numerous in 
streams that have bad fish ways ; because, when once they have 
spawned below a dam, the progeny are not inclined to go 
further, and lie in tidal waters. Large shoals of these " sulk- 
ers " may be seen at Squawbetty, on Taunton Great River, or 
at the foot of the dam, on Mystic Pond. Then there are the 
gray-hacks and the black-bellies^ which have all the marks of 
distinct species. The gray-back has the eye much larger and 
the head and lips stouter ; the lining membrane of the visceral 
cavity is flesh-colored, while in the other it is dark gray (hence 
the name black-belly.) But it is a curious thing that the young 
when going down in autumn, seem all to have this membrane 
gray, nor do their heads present the same difference as in the 
adult. The matter needs, and will receive, further investiga- 
tion.* 

Although the specific differences have not been observed in 
the young before they have gone to salt water, yet in all those 
that come thence the distinction is marked, whether they be 
yearlings, two-year olds, or three-year olds. As in the shad, 
the yearlings are all males and are fecund. f The black-bellies 
appear later in the season than the gray-backs, and, though 
smaller, are, by reason of their fatness, more esteemed. 

The season lasts from the 15tli of April to the 15th of June, 
but it varies very much with the temperature. If the weather 
be mild and sunny the fish push early up the rivers ; but, with 
a dull sky and northerly wind, they hold back. It is said, also, 



* If the Philadelphia Academy is short of " copy," here is a chance for some such paper 
as this : " On a supposed new species oi Alosa^ by Dr. Theodorus Branchia," and begin- 
ning, " Should this prove, on further investigation, a new species, I propose for it the 
name of ^. cozru'eogaster. Branc.'*^ 

t See Report for 1867, p. 40. 



g RIVER FISHERIES. [Jan. 

that a variety of the fish that usually runs up early in the 
season will preserve this habit if transplanted to other waters ; 
for example, the early alewives of Martha's Vineyard when 
brought over to Cape Cod. When a fine day suddenly comes, 
the alewives, as afternoon approaches, mount the fishways in 
compact crowds, utterly regardless of the noise of mill-wheels, 
the presence of by-standers, or the continual sweep of the fatal 
dip-net, which casts them by pecks into a great bin, where they 
frantically flop, filling the air with a shower of silver scales. A 
single fishery on a trivial stream will often yield a hundred 
barrels in a day. The reason of this abundance lies in the 
great number of eggs laid by this herring. The ovary of a small 
black-belly weighed 2 oz. IJ dr. (17^- drachms.) while the whole 
fish was only 5| oz. So that the eggs were more than a third 
of the total heft of the animal. Now 10 grains (i of a drachm) 
contained 2,530 ripe eggs, making a computation of 265,650 
eggs for the entire ovary, or upwards of a quarter of a million. 
This is about four times as many as the shad lays. And this 
little fish of six ounces would produce more young than twenty 
salmon of fourteen pounds each. With these figures it is no 
longer difficult to understand how the alewives, with slight 
encouragement and protection, will annually return in immense 
quantities, to their native ponds. Like the shad, their growth 
occupies three years or more, and the females do not run to 
fresh water till two years old. This is shown not only by exam- 
ining the various sexes and sizes to be found in our fresh water, 
but is proved by cases where they have been cut off wholly or 
partly from their breeding-grounds. Thus if a dam be put 
across a stream, so as wholly to bar the fish from their breeding- 
grounds, they will return in quantities for three years, but, on 
the fourth, they will almost disappear. Again, if the area of 
their breeding-grounds be contracted, the diminution in the 
run will not take place next year, but in two years.* Whereas, 
if the fish grew to full size in a year, some great change ought 
to occur the very next season after any disturbance of their 
spawning-beds. t Encouragement has been given to this humble 

* We are indebted to Mr. George Sanford, of East TVareham, for valuable illustrations 
of the habits and growth of alewives. 

t Mr. Thaddeus Xorris, in his American Fish-Culture (186S), doubts the length of time 
allowed for the growth of shad, and says (p. 148) : '• The supposition that shad remain at 
sea two years is yet to be proven. I know, from pergonal observation, that their growth 



1869.] SENATE— No. 3. 9 

but useful species by opening the Mystic, Concord, and Ipswicli 
Rivers to it, and by putting 1,000 alive into the mill-pond above 
the Lawrence dam. The importance of its cultivation has also 
been urged on the sea-coast population, and a few years will 
undoubtedly show a great increase in the crop. 

(2.) Of Shad. Experiments at Hohjoke. — As early as 
June 8th, Mr. Corey Smith had hatched out, in one of Green's 
old boxes, a batch of young shad. These were eggs from one 
of the early runs ; and the evidence now goes to show that 
there are four or five such runs of ^'ripe" fish, and that 
mature spawn could be obtained, at intervals, from May to 
August. Seth Green began to hatch shad on the 22d of June. 
He was furnished with his patent boxes in plenty, and with men 
to haul the seine and to watch the spawn. A year's experience 
had taught him many new things, and he was able to proceed 
with more regularity and certainty. His experience in several 
rivers, as the Delaware, the Potomac, the Hudson, the Con- 
necticut, and the Merrimack, has shown that, although many 
females may be taken in the day-time, ripe females are only to 
be got in numbers at ni^lit. For example, a haul made at 8 
P. M. will often afford only two or three spawners with fifty 
males ; whereas at 9 P. M. the seine may bring in one-half 
spawners. Near quick water, the best time for hauling is from 
8.30 P. M. to 11.30 P. M. When pressing out the eggs it is 
well to keep the fish touching the water. After letting them 
stand ten minutes, fill the vessel up with fresh water and let it 
remain half an hour longer, giving it a tilt from time to time. 
Then put the eggs in the box, whose bottom should be of gauze, 
at least twenty wires to the inch (instead of fourteen,) because 
when the box bobs in a current the eggs get wedged in the net- 
is rapid, for I have taken scores of them ia August, when fishing in a deep tideway for 
white perch, the size averaging six or seven inches in length." How did Mr. Norris 
know that these fish were not ovet a year old ? At p. 141 he has copied a figure of a 
young shad at the end of September, which is but four inches long, while those figured iu 
August are proportionately smaller. It is not "a mere supposition" that the female 
yearling shad remain at sea. The yearling fish may be taken by barrels and cartloads in 
the Connecticut River, as far up as Hadley Falls, but they are, almost without exception, 
males, and are fecund. There are no females to be found but of a size much larger, and 
corresponding to another set of male fish; therefore they are called two-year olds. The 
same is true of alewives, every very small fish is a male. Mr. Xorris does make " a mere 
supposition " when he supposes that some young male shad stay in the river all winter. 
Every known fact is against such an idea, (see Report for 1866, p. 5, 1867, p. 40.) Mr. Norris' 
little book is an excellent one, and has all the latest iDformation, given in few words. 

2 



10 RIVER FISHERIES. [Jan. 

ting, if it be too coarse^ and the young make their escape for 
the same reason. Green visited several points on the two riv- 
ers, to give instruction in hatching, and continued his own 
work at Holyoke with entire success, until the extraordinary 
and prolonged hot weather of July, which killed large quanti- 
ties of fish in various parts of the country, and even destroyed 
trout in the Rangely lakes of Maine. The effect shall be given 
by Green verbatim : — 

" July 16th. 
" Friend Lyman : — I have quit to save expense. Last Monday 
(13th,) the spawn began to suffer from some cause. I was in 
trouble ; I did not stoj) looking. I had never seen spawn suffer 
from too warm water. Tuesday (14th,) began to think perhaps the 
vrater was too warm. Put a string of boxes in the mouth of the 
creek and tailed them out in the river. Water in the creelc^ 66°, 11 
o'clock, P. M. ; the tail end box, 84°. At daylight, in the morning, 
the box 66°, all good; the spawn 84°, all dead! I had a sure 
thing! I put a box up in the creek, 66°; all good until 12 o'clock 
the next day. The water in the creek had gone up to 82° — spawn 
suffering bad. The next day fifty per cent, dead ; the next, seventy- 
five. The rest hatched, but not healthy. The cause was w^hat I 
looked for ; and I found it, and I felt proud. I would have staid 
for ten cents a day, if I had not found the cause of the spawm dy- 
ing. I found it, and had nothing to do but set down and sweat ! 
That ain't me ! " 

To public speakers and writers this letter may serve as a 
model in the art of saying lohat you have to say in few words, 
and then stopping instantly. 

At Double Ditch^ near Springfield, an independent attempt 
was made, in order to see if the fishermen, generally, could be 
intrusted with the process. The person who tried it, a fisher- 
man of experience, continued from June 20th to the first week 
in July, and never katched an egg-; they all spoiled. He 
described the spawn as not flowing freely, but as coming " in 
lumps," (not ripe.) The causes of his failure were: 1. That 
he did not haul enough at night, and therefore got no ripe fe- 
males. 2. That the eggs thus obtained were immature and 
could not be impregnated. 3. (Perhaps) that the water was 
too sluggish to hatch spawn well. But, besides this, there is 
room to suspect that ripe fish are only to be got in quantity 



1869.] SENxlTE— No. 3. 11 

on or near their spawning grounds. If, however, it is their 
habit to go on their beds early in the night, and then to fall 
down the river, they might be taken, at points below their 
spawning grounds, either very late at night, or early in the 
morning. 

At North Andover, on the Merrimack. The hatching here 
was faithfully pursued by Mr. A. C. Hardy, who began on the 
24th of June. After some failures, he learned to do the work 
very well, although the supply of spawners continued small and 
uncertain, until the middle of July, when he stopped. He has 
since reported extraordinary numbers of young shad going 
down, a promising feature that comes of the present law 
prohibiting fishing on that river for five years. 

On Concord River, Lake Winnepisseogee, and Mystic River. 
A certain amount of spawn was carried to these places and 
hatched ; and it was found that shad-spawn, in tin pails or 
cans of water, could be transported for several hours and 
hatched with entire success. Another year, larger quantities 
will be sent to the proper points. 

The past season has been a very poor shad year in all the 
Middle and Northern States. On the Connecticut the catch 
has been from one-third to two-thirds of the average. But 
while this has been the rule on the Connecticut Kiver for large 
fish, the yeai'lings have been seen at all points in extraordinary 
abundance. They are reported as two or three times more 
plenty than usual. It would be too mucli to say that this was 
entirely owing to the artificial hatching of last season ; though 
it may be properly attributed to this cause. In order to deter- 
mine the actual numbers taken, the Commissioners distributed 
among the fishermen blank tables, on which to make returns of 
the number taken each day. And, although comparatively few 
were willing to take this trouble, still enough sent in their 
reports to give some valuable data. 

From one pier-seining fishery, near the mouth of the Con- 
necticut, returns were received for eighteen successive years, 
showing the number of large, marketable shad taken each 
season, to wit : — 



12 



RIVER FISHERIES. 



[Jan. 



1851, . 


.15,942 


1857, . 


. 5,690 


1863, . 


. 5,703 


1852, . 


. 5,642 


1858, . 


. 9,957 


1864, . 


. 4,058 


1853, . 


. 7,940 


1859, . 


. 5,117 


1865, . 


. 4,394 


1854, . 


. 4,703 


1860, . 


. 6,232 


1866, . 


. 7,223 


1855, . 


. 8,830 


1861,. 


. 7,708 


1867, . 


. 4,159 


1856, . 


. 6,777 


1862, . 


. 6,309 


1868, . 


.. 3,733 



It will be at once observed that, in 1851, the catch was nearly 
10,000, but that in no season since then has it come up to 
10,000 and has exceeded 8,000 only twice. The Holyoke dam 
was finally closed in 1849. The season of 1848 was the last in 
which the fish had access to the extensive breeding' grounds 
above Hadley Falls. The young of that year were marketable 
fish in 1851. All the three-year-old fish taken since then were 
bred in the contracted grounds below the Holyoke dam, and 
were consequently much less numerous.* The catch of 1852 
was about one-third that of 1851. Why ? Because in 1849 
the shad were suddenly stopped by the dam, and, there crowded 
together, were taken in vast quantities, (2,000 at one haul.) 
The spawning of 1849 was broken up ; the crop of 1852 was 
small. Now, throwing out 1851, we have a total catch, in 
seventeen years, of 104,475, or an average of 6,145 for each 
season. The years falling below this average were 1852, 1854, 
1857, 1859, 1863, 1864, 1865, 1867, 1868. Those above this 
average were 1853, 1855, 1856, 1858, 1860, 1861, 1862, 1866. 
That is to say : in the first nine years, five were above and four 
below the general average. In the second eight years, three 
were above and five beloiv this average. In the first nine years 
the total catch was 60,888, and the average 6,765 ; in the sec- 
ond eight years the total catch was 43,587, and the average 
5,448. To sum up, the average catch of the last half of the 
seventeen years, since the Holyoke dam was closed, has been 
only about three-fourths of that of the first half.f And the 



* See parallel instances under head of Alewives. 

t This calculation corresponds well with one made for a different part of the river, and 
on different data. See Report for 1865, p. 37. 



1869.] SENATE—NO. 3. 13 

product of the fishery, during the whole of this time, has prob- 
ably not exceeded one-half that of a corresponding period before 
the dam was built. For it should be borne in mind that the 
year 1851, above quoted, was not an unprecedented one ; on 
the contrary, 1848 was still better, and a single haul of 2,600 
shad was then made on this very pier. Were there no disturb- 
ing causes, good years and had years would go hy threes. That 
is to say, a good or a bad spawning would be followed, in three 
years, by a good or a bad crop. And, in fact, it often so turns 
out. Thus, 1848 and 1851, 1855, 1858 and 1861 were good ; 
while 1854 and 1857, 1864 and 1867, 1865 and 1868 were bad. 
The disturbing causes, however, are many. There may be a 
great lay of spawn, but much of it may be destroyed by sud- 
den hot weather (as during the past season,) or by muddy 
freshets. Again, the crop of large fish may actually be abun- 
dant, but if great quantities of turbid snow-water be continu- 
ally discharged from the river during the spring, the schools 
hesitate to run up and loiter in the delta of fresh or brackish 
water at the river mouth. Then it is that the pounds, which 
are set only in the bay, do well, while the river fishery proper 
is small. Such a state of things is also illustrated by the past 
season, when partly from the great flow of cold, muddy water, 
the seine, pier and drag-net fisheries were the poorest ever 
known, while the pounds gave an average product. In their 
last Report,* the Commissioners hinted that some singular 
testimony was given by the owners of these pounds (!), who 
stated there were but eight pounds set from the light-house at 
the mouth of the Connecticut River to Cornfield Point, a dis- 
tance of five miles. They were, farther, at great pains to show 
that their pounds did little damage by the capture of young 
shad, and were vastly beneficial in the destruction of sharks 
and other predatory animals. Remembering that " seeing 
is believing, and feeling is the naked truth," some of the 
Commissioners from New Hampshire, Connnecticut and Massa- 
chusetts (during May of the present year,) took a sail-boat and 
proceeded to examine the ground between the light-house and 
Cornfield Point in which space they counted twenty-six pounds. 
From which we are forced to believe either that this industry 

* Report for 1867, p. 8. 



14 RIYER FISHERIES. [Jan. 

took an unprecedented start during the past year, or else that 
the men who testified before a committee of the Assembly were, 
troubled with a shortness of memory ! The actual process of 
" drawing " a pound was calculated to impel the mind (how- 
ever regretfullj') toward the latter horn of the above dilemma. 
This usually takes place once a day, and can only be effected 
at slack water and in tolerable weather. The men proceed in 
a scow to the bowl, and close its entrances by drawing across 
them a net called the " apron." Everything wilhin is now 
safely imprisoned. The men then go round the bowl, hauling 
up the net-bottom, which they constantly shake, to extricate 
the meshed fish and to work the mass into one corner. When 
this is done, the whole are dipped out into the scow. At this 
drawing one or two cartloads of fish were thus dipped out. 
They consisted of shad, of all sizes ; sea-herring ( Clupea 
elong-atay') hickory shad (^Alosa lineata,^ and a few tautog 
QTautoga Americana) and weak-fish, or squiteague (^OtolUhus 
regalisS) The only representatives of the destructive sharks 
mentioned in the " testimony," were some little harmless rays, 
about the size of a dinner-plate. The large, "marketable" 
shad were thrown into a "buyer's" boat. There were only 
about 70. What, then, was the rest of this mass of fishes? 
As near as one could judge, about one-fourth were yearling 
shad. The total drawing could not have been less than twenty 
barrels, of which five barrels must have been yearling shad, 
which, at 300 to the barrel, would be 1,500 ; which is a pro- 
portion of 21 small to 1 large shad. Now complete returns 
from three pounds set during the past season, in Westbrook, 
show that the average catch of each was nearly 11,000 large 
fish. But, giving an average of only 7,000 (which was the 
testimony of the pound-men themselves, before the Assembly's 
committee,) then twenty-six pounds, from the light-house to 
Cornfield Point, would give 182,000 large shad, and, by a pro- 
portion of 21 : 1, 3,822,000 yearling shad, or 12,740 barrels, 
which were sold as salted lierring, or for manure ! Most of 
the pound-men took good care to make no return of their 
catch ; and the above calculation is of course a rough one ; but 
the testimony of the pound-owners before the committee was 
much more " rough," and in a different sense. This outra- 
geous slaughter of young fish has at last been forced on the 



1869.] SENATE.— No. 3. 15 

attention of the seiners and dragmen, and by their concurrence, 
and the strenuous exertions of the Connecticut Commissioners, 
the Assembly, at its last session, passed an admirable law,* lim- 
iting the size of net-meshes, and giving a " close-time " of 
thirty-six hours in each week. 

(3.) Of the Black Bass, (^Grysles fasciatus.') — Mr. Tisdale 
was at great pains to get the impregnated spawn during the 
season, but without success. A male and female were con- 
fined in one of Green's hatching boxes, having a slatted 
bottom, so that the spawn would drop through and be protected 
from the parent fish, f Thus confined they become sick, and 
infested with the confervoid called bi/ssus, despite a good cur- 
rent of water. They were therefore liberated. Next, several 
pairs were put in a large pool, and were taken out and pressed 
from time to time. But though they regularly swept their 
beds, and at last spawned in the pool, no spawn could ever 
be procured by the artificial process. Finally, all fish taken 
with the hook in breeding season were examined, but none 
would yield spawn. Doubtless a spawn bed can be arranged 
on Ainsworth's principle that will answer the purpose. This 
fish has been scarce, or hard to take, the whole season. One 
reason may be the high water, which gave so much feed that 
they did not care to bite. Nevertheless, several ponds have 
been stocked with this valuable species, at the expense of the 
State. 

(4.) Of the Smelt, (^Osmerus Viridescens.') — Particular 
attention was called last winter to this delicious little fish by 
a petition to the legislature for a protective law. It appeared, 
at the hearing, that it has been customary to seine them in the 
estuaries or streams up which they pass to spawn. The seine 
used may be 360 feet long and 20 feet deep, with a 1 J inch 
mesh, and is stretched diagonally from bank to bank. After, 
in this way, stopping everything that tries to pass, one end is 
hauled to the same bank as the opposite end, and all the con- 
tents are taken in the loop thus made. In one instance, 6,700 



* See Appendix. The attention of the legislature is earnestly directed to the fact that 
the above law is conditional on a similar one being passed by Ifassachusetts during the 
session of 1869. 

t It will thus be seen that the idea of Ainsworth's spawning-bed (soon to be described) 
presented itself also to Mr. Tisdale, Avithout correspondence between the discoverers. 



16 RIVER FISHERIES. [Jan. 

pounds of smelts were taken thus at one haul ! As twelve 
usually go to a pound in the " school " fish, this would make 
80,400. These fish that run in large schools are the young, 
while the older fish, which sometimes weigh as much as 10 oz., 
are fewer, and consequently more scattered. It was main- 
tained that they would not take the hook after they had been 
three or four weeks in tidal or fresh water. This was again 
denied. The truth very likely is, that as the spawning season 
approaches, the gravid fish cease to feed, (as among other 
Salmonida3 ;) but since there may be several successive runs, 
which spawn at different times, there are always fish that will 
bite, up to a certain season. It will be observed that the habit 
of the smelts is just the reverse of that of the salmons ; for 
the former approach tidal and fresh water in autumn and 
remain all winter, backing down from the brooks when the 
weather is too cold, and pushing up again in spring to spawn 
on the gravelly and rocky bottoms ; whereas the latter run up 
in spring and spawn in the fall. It is on their spawning beds 
that the smelts are taken with dip-nets in great quantities. 
They are then usually soft and poor for food, but this did not 
deter the fishermen, who knew there were plenty of people 
ready to buy and eat them. The following table shows the 
number of dozens of smelts taken by two dip-nets during 
thirteen seasons, at the back-water dam, in Milton, on the 
Neponset River : — 



1855, . 


. 300 dozen. 


1862, . 


. 


. 417 dozen 


1856, . 


. 100 


(( 


1863, (8 


nets,) . 


. 2,275 " 


1857, . 


21 


(( 


1864, . 


. 


. 850 " 


1858, . 


. 1,113 


(( 


1865, . 


. 


. 1,715 " 


1859, . 


. 507 


u 


1866, . 


. 


. 714 " 


1860, . 


. 927 


<( 


1867, . 


. 


. 1,154 " 


1861, . 


. 725 


(( 









Now the question rises, why should not these fish be caught 
at one season, and at any one place, as well as at another ? If 
a fish that spawns in April be taken in October, it is not full of 
spawn ; but then, if allowed to live, it ivould have been full of 
spawn in due season. So far, then, as the individual is con- 
cerned, it makes no difference in its progeny for that year 
whether it be taken before or after the spawn is developed. 



1869.] SENATE— No. 3. 17 

All fishes that go to fresh water to breed, seek their proper 
birth-place, and they are then concentrated and crowded 
together, and are, moreover, very tame, so that it then becomes 
possible to capture them in vast quantities and in a limited 
space; and, unless they be at that time protected, they 
are liable to extinction in the particular waters where such 
wholesale destruction goes on. Therefore it was that the last 
legislature afforded such proper protection.* 

(5.) Of the Trout, (^Salmo fontinalis.^ — During the last 
year, the general and growing interest in pisciculture has 
turned chiefly towards this easily bred species, and several 
establishments, private or public, have been started. f With 
these have come also improvements, among which may be men- 
tioned a box for rearing the young, which consists of a long 
trough with partial cross-bulkheads, (as in a fishway,) and with 
a cross-trough at tlie head, making a letter T. This cross- 
trough is grated, and, by its long surface, admits much more 
floating food than would enter the end of the rearing trough 
proper. Mr. Ainsworth, to whom we owe many valuable inven- 
tions, has contrived a new spawning bed which promises 
excellent results. On the floor of a trench he lays horizontal 
screens of fine wire ; one inch above these he lays similar and 
parallel screens, but of coarse wire, with a |- inch mesh. On 
these last he spreads one or two inches of gravel, so coarse that 
it will not fall through. The trout pair in the trench ; the 
female sweeps the gravel, clean to the wire, bends into the 
nest thus formed, and discharges some spawn, which falls 
through to the loiver screen, where it is reached by the sper- 
matic fluid of the male. In this way, the danger and trouble 
of handling the fish is avoided, while the spawn, thoroughly 
impregnated and protected from enemies, may be, from time to 
time, removed to the hatching troughs. Mr. E. A. Brackett, of 
Winchester, has tried this with entire success, and has improved 
on the process in a way that promises the best results. He 
makes the lower screen of a simple wooden frame, -J inch deep, 
and with a cleat below to raise it from the ground. The 
bottom of this frame is made of common " mosquito-bar,"^ 

* See Appendix C. 

t Both IMr. Livingston Stone, of Charlestown, N. H., and Messrs. Robinson & Hoyt,. 
of Meredith, N. H., have much improved and enlarged their establishments. 



18 RIVER FISHERIES. [Jan. 

stretclied and tacked, wliicli is further strengthened by a 
diamond network of coarse twine, each diamond being about 
1 1- inch long. The gauze and the network are in contact, and 
the latter serves also to hold the spaw^i in place. Both gauze 
and network are saturated with rosin varnish, and are then 
well heated to drive off the turpentine. Finally the whole, 
including the frame, gets a coat of shellac varnish. These 
frames, when covered with spawn, may be put directly in the 
hatching troughs, without any gravel below or above ; and the 
advantage is, that if any sediment collects, it may be easily 
washed through the gauze, and pass off in the open space 
below. Further than this, there seems no reason why this 
artificial spawning bed should not be in the hatching house 
itself^ with a small fishway leading into it from the pools where 
the breeders are kept. As the season comes on, the trout will 
go lip the fishway into the spawning bed ; and thence the lower 
screens, covered with their ova, may, from time to time, be 
removed to the hatching troughs. Tlie whole apparatus is as 
cheap as cheap can be, and presents great inducements to our 
farmers and fishermen. Certainly they would not hesitate to 
begin this industry did they know the little labor needed and 
the considerable food and profit to be derived. They should 
know that the skim milk of one good cow turned into curd will 
plentifully feed 500 pounds of trout, and with what they them- 
selves pick up, will cause them to grow rapidly. Now will it 
feed 500 pounds of pork ? The trout are worth at least 8250, 
the pork not more than 880. A bit of curd the size of the 
finger, rubbed and washed in a bowl of water, is enough food 
for 10,000 young trout fry, just after absorption of the sac* 
Cape Cod is especially adapted to the culture of the finest 
trout, for it is not the celebrated Marshpee River alone which 
is capable of producing them. Every tiny creek or rill that 
empties into salt water is available for their culture. The 
trout of the Marshpee, after spawning in the river, go down 
stream, and by December 1st are all collected at its mouth, 
where numerous springs, gushing from the high banks, furnish 
a plentiful and equible water ; here they lie during the winter, 
sometimes even buried -in the mud, all but the head. They 

*Norris: American Fish Culture, p. 73. 



1869.] SENATE— No. 3. 19 

are then dark and in poor condition. In sunny, warm days, 
they venture forth, and are sometimes killed from being caught 
in shoal water by a " cold snap," when the ice makes round 
them before they are aware of their danger. In the middle or 
end of March they push out into the brackish water of the 
bay, going back and forth with the tide, and feeding voraciously 
on the small shrimps which there abound. About the middle 
of May they begin to run up the river, and they are then in 
beautiful condition, with dark green backs and silvery sides, 
and the roof of the mouth light colored. The great run of 
prime fish is in June. During the summer heats they lie in 
the deep holes under the banks, and gradually lose tlieir sea- 
coat, taking on the spots and mottles of a brook trout, from 
which they cannot readily be distinguished when kept for a 
year in confinement. So far as is known, all so called brook 
trout will go to the sea if they get a chance, but will not 
therefore resemble each other. When a trout is highly fed, 
he becomes " pig-bodied," and his head seems diminutive, 
(Marsiipee variety ;) but if his food must be worked for, his 
body becomes long and graceful, and the head is conspicuous, 
(Red Brook variety :) finally, if he be starved for part of the 
year, the head becomes disproportionate, and the body is small. 
The growth of sea-going trout is rapid, and a marked fish 
from Quashnett Brook, which was put in Marshpee River 
weighing 4 oz., was taken in two years, and had gained one 
pound in that time.* 

(6.) Of the great White fish^ {Cores:oni(s A/bus.) — Mr. James 
Rankin, Commissioner of Connecticut, has gone to Sackett's 
Harbor in quest of the eggs of this fine and valuable fish. He 
has already sent some, but the result of the experiment will 
belong to the next report. 

(7.) Of the St. Croix ''Land-locked Salmon'' (Salmo, sp. ?) 
Orders are out for collecting the ova of this species, as well as 
those cf 

(8.) The Lake Winnepisseogee trout., (Salino namaycush ?) — 
A fish valuable for its large size, and which, with improved 
food, we may hope to make even a delicate fish. 



* Much of the above information about the Marshpee trout is from Mr. G. L. Fessen- 
den, of Sandwich. 



20 RIVER FISHERIES. [Jan. 

(9.) Of the true Salmon, (^Salmo Salar.} — The experiments 
of last year, so promising at first, ended in much disappoint- 
ment. In the first place, of the 70,000 ova obtained by Dr. 
Fletcher with much trouble, only about 10,000 were found to 
be impregnated. It is not easy to say which, of the many 
possible causes, led to this failure. The eggs may not have 
been thoroughly mature, and the same might be true of the 
luilt, which, there is reason to think, is not always in a fertiliz- 
ing condition. It is, however a risk that is always to be run 
whenever fish are sought, under difficult circumstances, and in 
their native haunts. Of the 5,000 young hatched by Mr. Stone 
at Charlestown, nearly the whole were lost during the hot days 
of July, already spoken of, though those at the establishment 
of Robinson Sc Hoyt, at Meredith, X. H., remained healthy. 
It seems that there is much hazard in leaving young frj in the 
somewhat confined space of an ordinary trough. They require 
space and nature. They would do much better in an artificially 
arranged brook, with a netting at each end. During the present 
summer Mr. Livingston Stone, with the encouragement of the 
Commissioners of New Hampshire and Massachusetts, made 
preparations to take spawn in a regular manner. He got per- 
mission, under certain conditions, from the Canadian govern- 
ment,* to stretch a net across the north branch of the Miramichi, 
and stop all salmon. Having put up a suitable hatching house, 
he began (after great opposition and loss, that arose from an 
informality in his papers,) to take the ova ; and he succeeded 
in getting about 425,000, of which one-half are to be left in 
the country, according to the agreement, and the other half 
have already been shipped for Charlestown, N. H. Massachu- 
setts and Xew Hampshire hope to get 140,000 together, which 
will be for the Merrimack and other streams. Mr. Stone 
deserves credit for persevering under great difficulties, but his 
success could hardly have been such as it has, witliout the 
official assistance which he constantly received from Mr. W. 
H. Yenning, the Inspector, whose courtesy deserves the best 
thanks. 

(10.) Of the White Perch, QLahrax rufus.^— This excellent 
'•pan-fish" will certainly be destroyed unless protected from 

* From the Minister of Marine, through W. F. Whitcher, Esq., Secretary. 



1869.] SENATE— No. 3. 21 

seining through the ice in March, when congregated in the 
deep tidal holes, at the mouths of streams. It should have the 
benefit of a law similar to tliat for smelts. Such laws would^ 
help the poor in several ways ; and especially many men thrown 
out of other work by the cold weather, could earn an excellent 
living witli hand lines ; whereas, now the fishery is often monop- 
olized by those who have money enough to get nets. 

Having spoken of several species worthy of cultivation, it 
may be fitting to speak of two that should be cultivated only 
by throwing them on land and cutting their heads off ! These 
are the mud and ipond pickerels, (^Esox ornatus and reticulatus.y 
More abominable animals there are not ! And the best^proof that 
our people crave fish is, that they are willing to eat pickerel ! 
To raise other fishes near them is like trying to raise poultry, 
under a hawk's nest. They penetrate even to cold trout brooks, 
and devour the young of every species that comes in their way ;, 
so that they utterly depopulate the waters, and convert thou- 
sands of the finest fishes into their own soft, muddy-tasting 
flesh ! If the State would offer a premium of $j5.00 a cartload 
for them it would be money well spent. Instead of this, these; 
ogres are actually protected by laws,* and may be taken only in 
certain ways and at certain times, under penalty of ^1.00 for 
each offence. Yet there is not a fifty-cent pickerel that has not 
swallowed ten dollars' worth of better fish than himself. 

Necessary Legislation. 

If sheep, cattle, and horses could be legally killed, or caught! 
and sold, by the first passer-by, whenever they were kept in a 
field exceeding ten acres, or whenever they chanced to stray 
into a neighboring road or pasture, it is not likely that these 
useful animals would be much bred. Or if chickens, turkeys, 
ducks and geese were under cover of the law only when tliey 
were in their own coop, we should have little to give thanks for 
at Thanksgiving. But these creatures very properly are pro^ 
tected and are recognized as propertij. That this character of 
property should also be extended to food-fishes, under certain 
circumstances, was illustrated in the last report. f At present 

* General Statutes, 1857, Chap. 30. 1860, Chap. 83. 
t Report for 1867, p. 6. 



22 RIVER FISHERIES. [Jan. 

they are all, in law, " wild creatures," (/er^ nalurcc^) and 
may be protected only within the limits of the owner's estate ; 
if they pass beyond those limits they belong to tlie first finder. 
What then is the position of a man who is ready to put his 
capital into pisciculture, and who prepares to supply the market 
with so many thousand pounds of trout, just as a Rhode 
Islander would supply it with so many turkeys ? He owns the 
land round a pond of twenty acres, and a fine spring-fed brook, 
which flowing thence, runs to the salt water. He puts up a 
hatcliing house; digs his pools ; makes a dam and flume. He 
hatches and rears large quantities of trout, which grow rapidly, 
and live in the pond and brook, and go also to the sea in their 
season. One fine morning, he finds half-a-dozen men fishing at 
the mouth of his brook, each one with a basket full of his trout. 
He remonstrates. They reply, " tidal water ! " and go on fish- 
ing. In despair he seeks consolation in his pond. Lo ! there 
are more men with more baskets of his trout. Again he remon- 
strates. " Great pond ! " reply the anglers. " Over ten acres — 
free fowling and fishing according to ancient charter! " Sadly 
he seeks to ease his mind by strolling up a tributary brook 
which comes in through a neighbor's land. Behold ! there is 
the neighbor himself, with a basket of trout taken from the 
brook. " Very sorry," says the neighbor ; *' the trout may be 
yours ; but the brook is mine ! " 

Is this state of things justice ? Is it common sense ? Is it 
true law ? None of these ! It is injustice, nonsense, and out- 
law. In point of fact we are trying to live under laws that 
applied, not to a rich, densely populated and intensely commer- 
cial people, but to a feeble community of scattered habitations, 
without great industries, and relying partly on game to eke out 
the scanty products of the newly-cleared forest land. If there 
be a general principle in our legislation, it is that everp industry 
(new or old) should have a fair chance. Now fish culture 
(and oyster culture as well) has^ within these feio years ^ become 
a true industry, — one that should bring wealth to individuals 
and revenue to the Commonwealth. It asks only a fair chance, 
— neither premiums nor a protective tariff* — but only that our 
inland waters should, in a large spirit, he thrown open to the 
energy of private persons ; for with us it must always be private 
persons, and not the government, that build up new industries. 



1869.] SENATE— No. 3. 23 

Witli other brandies we have done so. A man, or a company, 
may build a dam, only they must, of course, pay damages if 
they drown the land, and they must further give right of way 
to boats and to fish. Again, a railroad may be a private 
nuisance, but it is a public benefit ; therefore it may go through 
a man's flower garden or through his parlor, and he has dam- 
ages, but no appeal. From another point of view, patents and 
copyrights are devices to compel a community to reward the 
skill of a particular person. All these are, more or less, privi- 
leges to encourage enterprises, general or special. Privileges 
they are, because they most always inconvenience certain 
people, though they benefit many more. And this injury or 
inconvenience is an element of nearly every change for the 
better, and is to be calculated and to be expected. The inven- 
tion of a machine at first throws hand-workers out of employ ; 
the invention of a better machine destroys the owners of the 
first machine. We may therefore feel happy if it can be shown 
that this fish culture can receive its rights without anything 
more than a theoretical injury to the community, or rather a 
theoretical deprivation of privilege ; just as a boy might have 
a theoretical deprivation of the privilege of picking pears off 
a tree that never bore any. What the pisciculturist asks is 
control over the inland water as far as concerns the fish^ and 
no farther. He cares not for boating, skating, ice-cutting or 
manufacturing. He only says : '' If I spend time and money, 
let me have their fruits protected like any other laborer." But as 
the law now stands * he cannot prevent people from stealing his 
fish in a pond of over ten acres, or in a stream where the 
tide ebbs and flows. Nor can he reclaim his fish when they 
escape, even though they be marked. (A log-driver can 
reclaim his lost logs, and he who cuts them up will find them 
dear firewood !) The section of the ancient charter, that " all 
householders have free fishing in any great ponds, bays, coves 
and rivers, so far as the sea ebbs and flows," is now as obsolete 
and injurious as the one that declares that " whatsoever person 
shall endeavor to draw away the affection of any maid, under 
pretence of marriage, before he hath obtained liberty from her 
parents, (or oi the nearest magistrate^') shall forfeit, for the first 

* See Appendix C, law of great ponds and navigable streams. 



24 RIVER FISHERIES. [Jan. 

offence, five pounds ! " * What is needed is not tlie repeal but 
the modification of the charter provision, bj giving to owners 
of the shore line of " great ponds " (" riparian proprietors ") 
the control of the water opposite their land for purposes of 
fish culture alone, without detriment to other common rights 
of the community ; and so forbid the taking, in tidal waters of 
small streams, (without permission of the owners,) of certain 
cultivated fish, such as trout, salmon, etc. ; or, in other words, 
to combine in one great and general Act the easements and the 
encouragements often heretofore granted in the special Acts by 
which our statute book is encumbered. Let us a moment 
glance at these numerous laws, of which a pretty complete 
digest is presented in Appendix C. Fundamentally it is to be 
noted that, under the ancient charters, citizens have free fishing 
in great ponds and in tidal waters, only when the same have not 
been '' otherwise appropriated " by the town or by the legisla- 
ture. We then are to consider the different ways in which the 
legislature, during the last twenty years, has " otherwise ap- 
propriated " such fishery rights ; or in other words, in what 
manner the legislature has, for general good, taken rights 
from the citizens at large, and transferred them, with or with- 
out consideration, to towns, to companies, or to individuals. In 
many of the streams emptying into the sea the shad and alewife 
fisheries are made a monopoly of the towns, (see Appendix C, 
chap. 401, Acts 1855 ; chap. 89, Acts 1860, etc., etc.,) and these 
towns sell them to the highest bidders, w^ho, in turn, sell the 
fish to the people. Here the citizens cannot fish themselves, 
but must buy fish. Nor does the sum paid to the town treasury 
really help the poorer people by diminishing their taxes, 
because their taxes in any event amount to little or nothing. 
Nevertheless such control of these fisheries is wholesome. 

By chap. 183 Acts 1865, chap. 117 Acts 1863, chap. 95 Acts 
1853, the fisheries of various great ponds are handed over to 
the control of towns, to exclusion of citizens at large. By 
chap. 187, Acts 1866, a general provision is made for corpora- 
tions to obtaiji exclusive right to alewife fisheries created or 
improved by them, in streams or ponds, no matter of what 
size. Chap. 290, Acts 1868, gives to individuals entire control 

* Colony Laws, Chap. LXVI. 



1869.] SENATE— No. 3. 25 

of trout fishing 200 yards into navigable tide-water. A com- 
pany gets exclusive control of an island for fish-breeding in 
chap. 200, Acts 1867, with privilege of stopping up coves and 
creeks, and of forbidding fishing within forty rods of the shore. 
There are a score of Acts within as many years that grant 
extraordinary and exclusive fishing privileges to companies or 
to combinations of individuals, (chap. 231, Acts 1854, etc.,) 
and there are many more Acts granting the privilege of making 
weirs in tidal water on the sea-coast, which weirs are a perma- 
nent obstruction, and have all the characters of an exclusive 
fishery, (chap. 51, Acts 1855, etc.) Most of the Acts above 
quoted are good and really beneficial, and usually their only 
great fault is their partial and variable character. 

Tlie whole tendency of our legislation of late years has been 
to support our exhausted inland fisheries^ hy granting' privileges 
to those who would improve and increase them. And now that 
fish culture comes forward as a well defined and true art^ it is 
the first duty of our legislature to pass such enactments of 
general application as shall insure the rapid development of 
this art, without forcing its followers to go through long, 
uncertain and tedious forms of special legislation to gain the 
protection that is necessary to success. Our inland fisheries 
with the hook-and-line now practically amount to nothing. If 
some favored spots be excepted, all that rewards the patient 
angler is a few miserable pickerel, or some little perch, pouts, 
and shiners. Instead of this, each pond and brook might 
teem with the best trout, black bass, white fish, land-locked 
salmon, etc., if only they were recognized as property. The 
needed legislation may thus be recapitulated in its briefest 
form : — 

1. Great ponds and minor tidal streams shall he controlled 
by their riparian proprietors^ so far as concerns the taking 
of certain cultivable fishes, 

2. The Commissioners of inland fisheries shall, under certain 
conditions, have power to set apart waters for breeding fish, 
and to prohibit fishing therein for stated times, or at stated 
seasons. 

3. The putting of drugs and dyestuffs, or deleterious 
products of manufactures into ponds and streams, shall be 
prohibited. 



26 RIVER FISHERIES. [Jan. '69. 

4. There shall be a certain and uniform number of days 
in each week of the fishing season when fishing shall be 
prohibited. 

It would, of course, be too long a task to show in this place 
the details of such legislation. It is only proper to add that it 
would necessitate no interference with the present local laws in 
regard to certain fisheries, especially that of the alewife. 

The Commissioners respectfully suggest an appropriation of 
$2,500 to enable them to continue the introduction of valuable 
food-fishes during the coming year. 

All of which is respectfully submitted. 

THEODORE LYMAN, 
ALFRED R. FIELD, 

Commissioners, 



APPENDIX. 



28 RIVER FISHERIES. [Jan. 



. [A.] 
NEW ENGLAND COMMISSIONERS OF RIVER FISHERIES. 



MAINE. 



Charles G. Atkins, Augusta. 

Nathan W. Foster, EastMacliias. 



NEW HAMPSHIRE. 

Hon. H. A. Bellows, (Chairman,) . . . Concord. 

W. A. Sanborn, Weirs. 

VERMONT. 

Prof. A. D. Hager, Proctorsville. 

Hon. Charles Barrett, Grafton. 

^SIASSACHU SETTS. 

Theodore Lyman, (Secretary,) .... Brookline. 

Alfred R. Field, Greenfield. 

CONNECTICUT. 

Henry Woodward, Middletoicn. 

James Eankin, Old Sayhrooh, 

James A. Bill, Lyme. 

RHODE island. 

Alfred A. Reed, ...... Apponaug. 

Newton Dexter, ...... Providence, 



1869.] SENATE— No. 8. 29 



[B.] 

The following is the legislation for 1868 which touches inland 
fisheries : — 

[Chap. 53.] 
Kesolve concerning a Fisliway over or around tlie Dam at Holyokc, on the 
Connecticut River. 
Resolved., That there be allowed and paid out of the treasury of the Com- 
monwealth, and the same is hereby appropriated, a sum not exceeding twelve 
thousand dollars, to be expended under the direction of the commissioners 
appointed under chapter two hundred and thirty-eight of the acts of eighteen 
hundred and sixty-six, in the construction of a fishway over or around the 
dam at Holyoke, on the Connecticut River, in accordance with the provisions 
of said chapter two hundred and thirtyrcight of the acts of the year eighteen 
hundred and sixty-six. {^Approved June 4, 1868. 

[Chap. 179.] 
An Act for the Protection of Smelts. 
Be it enacted., ^^c, as follows : 

Sect. 1. Whoever catches any smelt from the first day of February to the 
first day of May in each year, in any manner whatever, or at any season of 
the year in any other manner than by hooks and lines or hand nets, shall for- 
feit twenty-five cents for each smelt so caught, to be recovered by prosecution 
before any trial justice or court competent to try the same : provided., that 
nothing herein contained shall apply to any person catching smelt in any 
seine or net in Taunton Great River, while fishing for herring or alewives. 

Sect. 2. The commissioners of river fisheries may take any kind of fish 
at any time for the purpose of obtaining spawn for artificial propagation of 
fish. 

Sect. 3. All prosecutions under this act shall be instituted within thirty 
days from the time of committing the ofience. \_Approved May 4, 1868. 

[Chap. 128.] 
An Act to amend " An Act for the Re-stocking of Mystic River and its 

tributaries with fish." 
Be it enacted., ^c, as follows : 

Sect. 1. The one hundred and forty-ninth chapter of the acts of the year 
one thousand eight hundred and sixty-seven, entitled " An Act for the Re- 
stocking of Mystic River and its tributaries with Fish," is hereby amended by 
adding to the second section thereof the words following, viz. : '■^provided, 
that the several committees for the preservation of fish mentioned in the 



30 RIVER FISHERIES. [Jan. 

fourth section may take such fish as may be required to re-stock the said river 
and tributaries;" and alfio, by adding to the fourth section after the word 
*' Cambridge," the word " Woburn." 

Sect. 2. Any person who shall place or cause to be placed in the waters 
of Mystic River or of its tributaries, or of Mystic Pond, or who shall cause 
to flow into said waters any substance which may destroy or injure the fish 
therein, shall be punished by a fine not exceeding fifty dollars for each 
ofience. [^Approved April 16, 1868. 

[Chap. 157.] 
An Act for the Re-stocking of Ipswich River and its tributaries with Fish. 
Be it enacted^ Sfc, as follows: 

Sect. 1. The right to take alewives or shad from Ipswich River or its 
tributaries, or from Wenham Pond, shall be and Is hereby suspended for the 
period of three years next ensuing, and no net, seine or weir shall be set 
therein during said period. 

Sect. 2. Any person violating the provisions of this statute shall forfeit 
one dollar for every alewife or shad so taken. 

Sect. 3. All prosecutions under this act shall be commenced within thirty 
days from the time of committing the ofience. \_Approved April 29, 1868. 

[Chap. 289.] 
An Act for the protection of Trout in the Merrill Pond in the Town of 

Wendell. 
Be it enacted^ Sfc, as follows: 

Sect. 1. No person shall take any trout from the Merrill Pond, on the 
old Wendell town farm, in the town of Wendell, or the waters running into 
the same, at any time of the year, without permission of the proprietor or 
proprietors. 

Sect. 2. Any person offending against the provisions of this act shall for- 
feit and pay a fine of one dollar for each trout taken, to be recovered by 
prosecution before any trial justice in the county of Franklin. [Approved 
June 4, 1868. 

[Chap. 290.] 
An Act to protect Trout in Jones' Mill Creek in the Town of Barnstable. 
Be it enacted, Sfc, as follows: 

Sect. 1. No person shall take any trout in Jones' mill creek, in the town 
of Barnstable, from its source to the junction with Scorton creek, and within 
two hundred yards of said junction, on either side thereof, from the first day 
of August in each year, to the first day of April in the year next ensuing ; 
nor shall any person take any trout therefrom except by hook and line ; nor 
shall any person enter upon the land bordering upon said pond or stream, at 
any season of the year, for the purpose of taking trout, without the written 
permission of the proprietors. 

Sect. 2. Any person offending against the provisions of this act, shall 
forfeit and pay a fine of one dollar for each trout taken, to be recovered by 
prosecution before any trial justice in the county of Barnstable. 

Sect. 3. This act shall take effect upon its passage. [Approved June 4, 
1868. 



1869.] SENATE— No. 3. 31 

[Chap. 130.] 
Ax Act to regulate Fishing in Connecticut River. 
Be it enacted, ^'c, asfolloivs: 

Sect. 1. Any person who sliall take, or who shall aid or assist in taking 
from the Connecticut River any shad at any other time than between the 
fifteenth day of March and the fifteenth day of June in each year, shall 
forfeit and pay for each offence the sum of one hundred dollars. 

Sect. 2. Any person who shall take, or aid or assist in taking from the 
Connecticut River any salmon before the fifteenth day of March, in the year 
one thousand eight hundred and seventy-two, shall forfeit and pay for each 
offence the sum of fifty dollars. 

Sect. 3. Nothing in this act contained shall apply to the taking of any 
fish by order of the fish commissioners for the purpose of artificial or natural 
propagation of the same. 

Sect. 4. The mayor and aldermen of any city, and the selectmen of any 
toAvn, bordering on the Connecticut River, shall appoint and fix the compen- 
sation of one or more suitable persons as fish wardens within their respective 
cities and towns, who shall make complaint of all offences under this act. 
\_Approved April 17, 1868. 

The above Act failed to fix any days in the week when fishing is 
prohibited. It therefore did not agree with the Connecticut law, 
which, in turn, became inoperative, and thus, by the carelessness of 
our legislators, Connecticut was left without «???/ fishery Icno at all^ 
because the laws of the two States were conditional one on the 
other. 

The following is the Connecticut conditional law to which the 
earnest and early attention of our legislature is called : — 

[Chap. 106.] 
An Act in addition to an Act, passed May session, A. D. 18G7, entitled, 

" An Act in addition to an Act for encouraging and regulating Fisheries." 
Be it cnac'ed tvc. ; 

Sect 1. No person shall set or draw, or shall assist in setting or drawing 
any net or seine for the purpose of taking fish, in any of the waters w^ithin 
the jurisdiction of this state, at any time between the setting of the sun on 
the evening of each Saturday, and the rising of the sun on the succeeding 
Monday morning; and the owners of all weirs, pounds and set-nets of any 
description, placed in any of the waters aforesaid, shall cause the same to be 
and remain open and free for the passage of fish at all times from the setting 
of the sun, upon the evening of each Saturday, to the rising of the sun upon 
the Monday succeeding, and the opening of any particular pound or weir in 
such manner as has been approved by the fish commissioners in the case of 
such p articular pound or weir shall be a sufficient opening and sufficient free- 
dom within the meanmg of this section ; and every person who shall violate 



32 RIVER FISHERIES. [Jan. 

any provision of this section and every person owning or controlling, in whole 
or in part, any pound or weir, and who shall fail to comply with the require- 
ments of this section, shall forfeit the sum of four hundred dollars to the 
treasurer of the state, for each offence. 

Sect. 2. No person shall set or use or shall assist in setting or using any 
pound, weir or set-net at any time between the fifteenth day of March and 
the fifteenth day of June in each year, in any of the waters within the juris- 
diction of this state, unless each of the meshes of said net is of as great an 
extent as five inches ; and every pound or weir, set or used in any of the 
waters aforesaid, at any time between the fifteenth day of March and the 
fifteenth day of June in each year, any of whose meshes is less in extent than 
five inches, shall be confiscated to the state of Connecticut. 

Sect. 3. Any person who shall violate any provision of the two preced- 
ing sections shall forfeit the sum of four hundred dollars to the treasury of 
the state for each offence. 

Sect. 4. All the provisions of the third and fourth sections of the act to 
which this act is an addition are hereby extended and shall fully apply to 
this act, and all parts of acts heretofore passed which are inconsistent with 
this act are hereby repealed. 

Sect. 5. The restrictions upon the size of the mesh, imposed by the second 
section of this act, shall not apply to the Thames river prior to the first day 
of May in each year, and said restrictions shall continue, with the penalties 
therein provided, from the first day of May to the first day of October of 
each year in said river at any and all points, in all creeks and coves on said 
river above or north of a line drawn across said Thames river by Jacobs 
Kock, so called. 

Sect. 6. The provisions of this act shall not apply to the waters of this 
state that lie between the eastern boundary of the town of Guilford and 
Pond Point in the town of Milford. 

Sect. 7. The limitation of the time of taking shad and salmon in the first 
and second sections of this act shall not take place unless the legislature of 
Massachusetts at its next session shall prescribe the same limitations to the 
catching of shad and salmon in said river as are contained in said sections. 
All parts of the act to which this act is in addition, inconsistent herewith, are 
hereby repealed. [^Approved July 31.s^, 18G8. 

Proposed draft of an Act to fulfil, on the part of Massachusetts, 
the conditions of the Act passed by the last Assembly of Connecti- 
cut. This should he passed immediately. 

An Act to extend the provisions of Chapter one hundred and thirty of the 

Acts of eighteen hundred and sixty-eight, entitled " An Act to regulate 

Fishing in Connecticut River." 

Be it enacted by the Senate and House of Representatives in General Court 
assembled, and by authority of the same, as follows : — 

Section 1. Any person who shall take, or aid or assist in taking, from 
the Connecticut Kiver any shad at any other time than between the fifteenth 



1869.] SENATE— No. 3. 33 

day of March and the fifteenth day of June in each year, shall forfeit and pay 
for each ofience the sum of one hundred dollars ; and any person who shall 
take, or aid or assist in taking, from the Connecticut River any salmon before 
the fifteenth day of March, in the year one thousand eight hundred and 
seventy-two, shall forfeit and pay for each offence the sum of fifty dollars. 

Sect. 2. Nothing in this act contained shall apply to the taking of any 
fish by order of the fish commissioners, for the purpose of the natural or arti- 
ficial propagation of the same. 

Sect. 3. No person shall set or draw, or shall assist or aid in setting or 
drawing, any net or seine for the purpose of taking fish in Connecticut River, 
at any time between the setting of the sun on Saturday evening of each week 
and the rising of the sun on the succeeding Monday morning ; and the owners 
of all weirs, pounds and set-nets of any description, placed in the waters of 
said river, shall cause the same to be and remain open and free for the passage 
of fish during the said period in each week, in such manner as to satisfy the 
fish commissioners. And every person who shall violate the provisions of this 
section, and every person owning or controlling, in whole or in part, any 
pound or weir, and failing to comply with the requirements of this section 
shall forfeit and pay the sum of four hundred dollars to the treasurer of the 
state for each offence ; and any person setting or using, or aiding or assisting 
in setting or using, any seine, weir or set-net in said Connecticut River, be- 
tween the fifteenth day of March and the fifteenth day of June in each year, 
the meshes whereof are less than five inches in extent, shall also forfeit and 
pay the sum of four hundred dollars for each offence, and such seines, weirs 
and set-nets shall be forfeited to the state of Massachusetts. 

Sect. 4. The mayor and aldermen of any city and the selectmen of any 
town bordering on the Connecticut River, shall appoint and fix the compen- 
sation of one or more suitable persons, as fish wardens within their respective 
cities and towns, who shall make complaint of all offences under this act. 

Sect. 5. The one hundred and thirtieth chapter of the acts of eighteen 
sixty-eight is hereby repealed. 



34 RIVER FISHERIES. [Jan, 



[C] 
DIGEST OF FISHERY ACTS.* 

The Special Acts of 1868 and ISGQ follow the General Acts of those years, while those of 
1SQ7 precede its General Acts. 



[1868.— Chap. 110.] 

1. Proprietors Grist Mill Pond, Wareham, control trout fishing therein. 

2. Penalty for trespass, forfeit one dollar for each trout on prosecution 
before trial justices, Plymouth County. [April 10, 1868. 

[Chap. 128.] 

1. Chap. 149, sect. 2, 1867, amended so that " committees for the preserva- 
tion of fish " may take shad and alewives for re-stocking from Mystic R. 
and tributaries, though for other persons the right to take said fish is suspended 
five years, and section four of said act amended by adding the committee 
from Woburn to committees there mentioned. 

2. Substances, injurious to fish, put or allowed to flow in above waters under 
penalty not more than fifty dollars. [yl^^riZ 16, 1868. 

[Chap. 130.] 

1. Abettors and takers of shad in Conn. R., except between March 15 and 
June, $100 each offence. 

2. Abettors and takers of salmon in Conn. R. before March 15, 1872, eaeli 
offence forfeit and pay S50. 

3. This act does not bear on fish commissioners. 

4. Mayor and aldermen and selectmen of towns and cities along Conn. R. 
have power to appoint and pay fish wardens for their towns and cities to make 
complaint. [April 17, 1868. 1864, 62. 

[Chap. 157.] 

1. Right to take alewives and shad in Ipswich R. and tributaries and in 
Wenham Pond suspended three years. 

2. Penalty, $1 every fish. 

3. Prosecutions to be begun within thirty days. [April 29, 1868. G. S. 88. 

[Chap. 179.] 
1. Catchers of smelt between Feb. 1 and May 1, each year, and at any 
time, if using anything but hooks and lines or hand-nets, forfeit 25 cts. each 
smelt on prosecution before competent authority. This does not apply to 
smelt caught in seines or nets, Taunton G't R., while fishing for herring or 
alewives. 

* Prepared by Moses Williams, Jr. 



1869.] SENATE.— Xo. 3. 35 

2. Commissioners may take any kind of fish at any time to procure spawn. 

3. Prosecutions must begin within thirty days. [^May 4, 1868. 

[Chap. 289.] 

1. Proprietors of Merrill Pond, in town of "Wendell, and influent waters, 
all seasons of year, control trout fishing therein. 

2. Penalty, Si each trout before trial justices. County of Franklin. [June 
4, 1868. 

[Chap. 290.] 
No trout can be taken in Jones' Mill Creek, town Barnstable, from source 
thereof to 200 yds. fi-om its junction with Scorton Creek, between Aug. 1 and 
April 1 ; nor at any time but by written permission of proprietor. 

2. Penalty, forfeit and pay Si each trout, trial justices. County Barnstable. 

3. Eifect on passage. [June 4, 1S68. 

Special Act of 1868. 
[Chap. 53.] 
1. Resolved : Allowed, paid and appropriated from State treasury not above 
S12,000, to be laid out by Comm., created by 1866, 238, for fishway at dam 
at Holyoke, Conn. R., according to 1866, 238. 

[Chap. 1867, 149.*] 

1. Right to take alewives and shad. Mystic R., tributaries and Mystic Pond 
suspended five years. 

2. Penalty, SI each fish. 

3. Prosecutions must begin within thirty days. 

4. " Preservation Committees *' from Medford, Somerville, W. Cambridge 
and Winchester, may remove nets, &c., during said period. 

Special Acts, 1867. 
[Chap. 70.] 

1. 83, G. S. 1-5, is hereby amended, inserting '• inhabitant this State " afler 
" fisherman," 3d hne. 

2. Efiect on passage. IMarch 16, 1867. 

[Chap. 86.] 

1. Taking trout prohibited, unless with written permit, in stream, East 
Head, Carver and Ph-mouth, from soiurce to dam of G. P. Bowers, owners of 
that part of stream controlling : provided, they keep a fishway open for trout 
at dam. 

2. Penalty, SI per trout ; trial justices, Plymouth County. [March 23, 1867. 

[Chap. 200.] 
1. TV. R. Beebe, G. C. Scott, P. Balen, associates and successors, corpo- 
rated, island Basque, town Gosnold, into P. Island Corporation, to build on 

* Amended, 128, 1868. 



36 RIVER FISHERIES. [Jan. 

said island, to live and raise fish, subject to powers, privileges and liabilities 
of such bodies. May close outlets to creeks to propagate black bass and 
trout. 

2. Seining and other modes of taking fish but by hook and line, within 40 
rods said island, penalty $5 to 20, proper court. 

3. Said corporation can hold, sell or mortgage real and personal estate to 
$50,000, not less than $25,000, shares each $100 : provided, no liabilities 
incurred till half stock paid in in cash. [May 2, 1867. 



General Acts, 1867. 
[Chap. 289.] 

1. Seine and other fishing, shad, salmon or alewives in Merrimack R. 
prohibited until 15th of April, 1871, with penalty of seine and $5 for shad or 
alewife each, and $50 each salmon. Fish Commissioners privileged for 
re-stocking any rivers. [G. S. 83. 

2. No fishing within 400 yards of Merrimack fish ways or trespass within ; 
fine, $50. 

3. Fishways to be made over dams in tributaries. [1866, 238. 

4. Mayor and aldermen and selectmen along Merrimack must appoint and 
pay fish wardens to enforce sections 1 and 2. [_May 31, 1867. 

[Chap. 344.] 

1. Fish commissioners of Act 238, 1866, have the following additional 
duties : to inspect all dams where law orders fishways. If said ways are 
found unsuitable for passage of fishes, notification may be given for repair, 
written instructions being given as to time and manner of repair. 

2. Persons and corporations refusing to repair, forfeit $50 for each day's 
neglect or refusal to keep open or maintain a fishway, got on indictment in 
county where dam is, one-half going to informer, half to Commonwealth. 

3. Appropriated and paid from Mass. treasury, sum not over $10,000, 
to re-stock rivers with shad, salmon and alewives, and the ponds with black 
bass and other fish. [June 1, 1867. 

[1866.— Chap. 187.] 

1. Mayor and aldermen and selectmen of towns and cities can give three 
or more persons and associates right of corporation, with capital stock not 
less than $1,000 nor more than $5,000, for propagation of herrings and ale- 
wives in their waters. Corporations having privileges and restrictions laid 
down in 61 G. S. and in general legislation as to corporations. [G. S. 61, 
83. 

2. Said corporations can hold real estate to open sluiceways for above use. 

3. Towns and cities, in their corporate capacity, may do as above, taking 
land as they would for highways. 

4. Fisheries thus created may be leased for times not exceeding five years, 
and towns and cities may so lease fisheries now held by them. 



1869,] SENATE— No. 3. 37 

5. Without leave of such corporations, as above, no persons can take her- 
ring or ale wives. 

6. Penalty, foregoing sections, $5 to ^50. 

7. Prosecution within 30 days. 

8. Rights under former laws not impaired by this, nor contracts nor private 
security against trespass. 

9. Effect on passage. [Apnl 25, 1866. 

[Chap. 238.] 

1. Governor and council can make two persons commissioners Merrimack 
and Conn. R's five years unless removed. Governor fills vacancies. 

2. Com. examine dams and decide how fishways shall be made, suitable 
for the passage of salmon and shad up river at usual seasons. 

3. Comm. having decided on above method of action shall state same to 
New Hampshire Comm. 

4. If said statement be approved by them, Mass. Comm., on expressed 
approval, shall give all dam-owners a copy of plan for their dam, and file in 
State Secretary's office affidavit that information has been given, and this 
affidavit shall be full proof of the facts stated therein, and a copy of plans 
shall be filed with affidavit. 

5. If dam-owners consent to fishways according to plans, at their own 
expense, Comm. may agree to this. When done, according to plans and 
direction of Comm., the latter may certify the fact to State Secretary, and 
these fishways shall, for 5 years, stand in lieu of fishways now ordered by 
law. Owners, for 5 years from passage of act, shall keep in repair, satisfying 
Comm., and if this be done, during 5 years, the liability of owners will be 
suspended. 

6. When said ways are done, Comm., in writing, shall certify times when 
they must be open, changing times, if they like. Copy of this shall be served 
on proprietors, and Comm's certificate is proof of fact. 

7. Dam-owners, refuting or neglecting, 30 days after receipt of plan, are 
liable for expense of ways made by Comm., to be recovered in action of con- 
tract in name of Commonwealth, costs and 12 per cent, interest from demand 
of Comm. for such expense. 

8. Owners of property taken for above purpose, if not liable as above, 
shall receive compensation on written application from Mass. Treas. through 
Comm. Compensation decided by jury as in case of highways. 

9. Dam-owners may, for five years, avoid all liability by paying Comm. 
sum which latter deem just by contract, attested by Comm. and filed with 
State Secretary. 

10. Said Comm. may contract with Essex Company to build their dam at 
Lawrence, paying not more than $7,000, expenses beyond that sum to be paid 
by Essex Company. 

11. Compensation of Comm. shall be determined by governor and council. 

12. Comm. may make or have made appliances facilitating passage of fish. 
IS. Comm. may delay making of fishways until they deem Connecticut 

legislation sufficient to protect passage of fish through that State. 
14. Appropriation, this Act, not more than S7,000. 



38 RIVER FISHERIES. [Jan. 

15. Penalty for neglect, etc., S50 each day, recovered In county where dam 
is, one-half complainant, one-half Commonwealth. [May, lo, 1866. 

Special Acts, 1866. 
^ [Chap. 54.] 

City of Taunton may sell right to take shad and alewives, Taunton G't R., 
by authority city council, instead of legal meeting prescribed by 2, 401 of 
1855. [March 2, 1866. 

[Chap. 249.] 

1. Takers of trout, in any waters, between September 20th and March 20th, 
and, within said time, buyers, sellers and holders thereof taken in this State, 
forfeit $1 each trout. 

2. Takers black bass State ponds, Dec. 1st to June 1st, or at any time 
unless by hook and line, forfeit $2 to $20 each offence ; competent court. 

3. Under this Act, sale, purchase or possession shall be evidence of capture 
in State on prosecution, [iliay 22, 1866. 

1866. — Resolves. 
[Chap. 80.] 
Whereas, Conn. R. once abounded in fish, now partially gone, and cause of 
this change is found in Enfield dam : therefore — 

Resolved, That attention of Conn, legislature be called to the fact that fish- 
ways should be made in said dam, by State or people, as interest of both 
States demands. 

Resolved, That a copy of these resolves be sent to Conn, governor for 
legislature. [May 18, 1866. 

[1865.— Chap. 47.] 
Selectmen or committee joro tern, of the town Pembroke, regulating alewife 
fishing in Barker's R., may regulate closing of passage-ways above the weir, 
(for alewives' passage to Indian Ponds,) and, saving mill-owners' rights, may 
obstruct passages of said fish : provided, they deposit from first running of said 
fish, after April 10th each year, alive and sound, at least 2,000 of said fish in 
said ponds, that they may spawn there. 

2. Alewives, above 2,000 deposited as above, disposed of by order of 
selectmen, any hour secular day, according to law. 

3. While passages are thus closed, dam-owners exempt from existing pen- 
alties as to fishways, and this act shall not prejudice rights now enjoyed by 
town officers. 

4. Conflicting acts are hereby repealed. [Feb. 27, 1865. 

[Chap. 58.] 

1. Inhabitants town Plymouth may. establish herring fishery town streams 
called Eel R. and Town Brook, and locate weirs. 

2. They may grant, also, not more than 12 years passage of this act, the 
above powers to persons approved in town meetings. 

3. After said 12 years, selectmen shall sell the same annually, town treasury. 



1869.] SENATE— No. 3. 39 

4. Interference said fisheries, disturbance weirs, unlicensed taking fish, not 
above $10 each offence. 

5. Act gives nobody right to molest dams or property in and along said 
streams. 

6. Effect on passage. \_March 16, 1865. 

[Chap. 85.] 
Wellfleet selectmen may annual town meeting sell ale wife fishery, said town 
not above ten years. [_March 16, 1865. 

[1865.— Chap. 183.] 

1. Town IVIattapoisett can improve Barlow's Pond, tributaries and sea out- 
let to raise and take herring, or alewives, and in every way protect and regu- 
late such fisheries. 

2. Inhabitants legal meeting called for this purpose may make by-laws and 
penalties : provided, they don't conflict with State laws. 

3. Such by-laws, within 10 days of passage, posted by selectmen in two or 
more public places. 

4. Violators such laws each offence not above $20, on conviction. 

5. Town liable for damages done in executing this Act, and if selectmen 
and damaged parties can't agree, superior court, Plymouth, shall appoint, on 
petition of damaged parties, three disinterested persons to award. Award of 
two of them shall be final : provided, the said petition be made within 3 years 
from damage. Such person may also have, if he likes, damages assessed. 

6. If this Act shall prejudice the herring fishery at weirs in Hammond's R. 
in Mattapoisett and Rochester, to any sensible degree, indemnity shall be 
rendered to owners of said fishery, legislature deciding whether in fish or 
otherwise. 

7. Effect on passage. \_May 1, 1865. 

[Chap. 219.*] 

1. No fish shall be taken within 50 rods of any fishway made or to be made 
in dams of Medford, West Cambridge and Winchester, between April Ist 
and June 15th. 

2. Penalty, 50 cents each fish. 

3. Prosecutions within 30 days. 

4. Effect on passage. \_May 10, 1865. 

[Chap. 253.] 

2. Trying to catch fish Sunday, in any way, within State, under a penalty 
of $50.00 each offence, on conviction. 

3. Prosecute within 30 days. \_May 16, 1868. 

Resolves, 1865. 
[Chap. 45.] 
Resolved, Governor and council appoint two commissioners to cause obser- 
vation to be made on Conn, and Merrimack R'e. during May and June, the 

* 149, 1867. 



40 RIVER FISHERIES. [Jan. 

height of water on crests of dams at Lowell, Lawrence and Holvoke, height 
and right of maintenance of flash-boards on said dams, and if they are uni- 
formly maintained thereon during those months ; also, extent of degree of 
discoloration in water below dams by discharge of dyestuffs and noxious 
matter from factories, and effect of same on water and fish ; also, to find best 
mode for fishways and expense of same, and other facts in their idea useful. 

Resolved, That said Comm. communicate with those of N. Hampshire and 
Vermont on subject of these resolutions ; ascertain their dam legislation ; 
whether they have fishways for salmon and shad, or power to maintain them 
or have them maintained. 

Besolved, That Comm. find out supply of fish before any obstruction ex- 
isted, and why they have become less numerous, and general information 
respecting subject. 

Resolved, That Comm. report to Gov. before first December next. 

Resolved, That HabiHty of Essex Company to re-build fishway in their dam, 
Merrimack R., according to their charter and the prescription of county com- 
missioners, be suspended until July 1st, 1866. 

Resolved, Governor to send copy to governors Vermont and New Hamp- 
shire. [May 3, 1865. 

[1864.— Chap. 62.] 

1. Meshes of seines shall not be less than 2i inches square, when new and 
dry. used in Mass. part of Conn. R. or below Holyoke dam, between May 1 
and July 15. 

2. Fine. §10 to S50, half to town and half to informer. 

3. Effect on passage. [March 2, 1864. 

[Chap. 150.] 

1. No trout shall be taken in Quashnet R.,Marshpee Dist., from Sept. 15 to 
March 20. 

2. Only owners can fish without written permit from Marshpee treasurer, 
specifying time and place. Nothing but hooks and lines shall ever be used. 

3. Said district can, by vote in legal meeting with warrant to that effect, 
enact by-laws not conflicting with this Act, and income shall be to profit of the 
district. 

4. Penalty under this Act and by-laws under it, ?20 each offence, trial 
justice, Barnstable County. 

5. Receivers of trout known to be from said R. forfeit 50 cents each fish. 

6. District at regular meetings may appoint two or more fish-wardens. 
Prosecution within a year. 

7. Effect May 1, 1864. [April 13, 1864. 

[Chap. 2U.] 

1. Previous Acts regulating fish in Mystic R. shall extend to town of Win- 
chester, its ponds and streams. Its fish committee may remove all obstruc- 
tions during time fixed by law. 

2. This Act shall not be construed to conflict " Act as to Pure AVater in 
Charlestown " of March 28, 1861. 

3. Effect on passage. [May 12, 1864. 



1869.] SENATE— NO. 3. 41 

[Chap. 259.] 
1. Seining prohibited, Mattapoisett Harbor and influent waters within line 
drawn from Strawberry Pt., easterly side of harbor, to most southerly side of 
Mattapoisett Neck, westerly side of harbor, without leave of Mattapoisett 
selectmen, penalty being S20 each offence for complainant's use. [_May 13, 
1864. 

[Chap. 273.] 

1. No seines or nets, Marion Harbor or influent waters between Charles 
Neck Pt., west side, and Great Neck Point, east side, without leave of Marion 
selectmen. 

2. Penalty on conviction, $20 to $50 each offence, town use. IMay 13, 1864. 



{.-Chap. 73.] 

1. 1855, 401, as to shad and alewives in Taunton G't R. and Newmasket 
R. are extended to tributaries of latter in Middleborough and Lakeville. 

2. Middleborough town wardens under 401, 1855, shall in person or by 
deputy guard against violation of above act from 1^ mile below dam at 
Squawbetty Tillage up to Assawampscott Pond ; expenses to be paid by 
said town, and other towns on Taunton G't R. shall yearly pay re-imburse- 
ment to said town, as follows : Fall River and Freetown $10 each ; Somerset, 
Dighton, Berkley, and Raynham $20 each, and Taunton $30, Middleborough 
to recover on action of contract. 

3. Beating on ground, or other disturbance of fish between March 1 and 
June 10, contrary to 401, 1855, shall be under penalities of 11, 401, 1855, if 
done in above rivers. 

4. Effect on passage. [^March 12, 1863. 

[Chap. 117.] 

1. Yearly committees, Plymouth and Wareham, under 89, I860, shall con- 
trol alewive and shad fishing in Agawam and Half- Way Pond and influent 
waters until successors are appointed. 

2. Takers of said fish, unless persons or agents authorized by said com- 
mittees, under penalty $5 to $50 each offence, recovered as in section 7, 
above act. 

3. Conflicting acts and parts of acts hereby repealed. 

4. Effect on passage. [March 28, 1863. 

[1862.— Chap. 202.] 
Takers and catchers. Little Quitticus Pond, towns Lakeville and Rochester, 
within six years, $1 each fish, any kind whatever. [April 30, 1862. 

[1861.— Chap. 74.] 

1. B. Bowerman, S. Gifford, and P. G. Moore and successors and associ- 
ates hereby corporated. Little Sipwiset Cranberry and Fishing Co. to drain 
and improve Little S. Meadow, town Falmouth, suiting meadow to cran- 
berry culture, and pond in meadow to alewive fishery, as also river thence to 
Buzzard's Bay. 

2. Company according to 68 G. S. 

6 



42 RIVER FISHERIES. [Jan. 

3. Persons obstructing pond or river, without leave of company, or seining 
or otherwise taking alewives within 50 rods of river's mouth in bay, or trying 
to take, $20 each, company's benefit. 

4. Effect on passage. [il/arcA 15, 1861. 

[Chap. 157.] 

1. Act of Feb. 16th, 1789, as to destruction of fish in Mystic R., within 
Cambridge, Charlestown, and Medford, repealing previous acts, " and also 
act of Feb. 2, 1816, as to fishing in Woburn, shall extend to town of Win- 
chester and its waters influent to Mystic R. 

2. Fish committee, of Winchester, may be elected in March or April, 
yearly, and shall have powers same as the other towns. 

3. Does not conflict with Charlestown Pure Water Act^ March 28, 1861. 

4. Effect on passage. \_April 9, 1861. 

[I860.— Chap. 46.] 

1. No taking of trout, Marshpee R. and influent waters from westerly side, as 
far as water flows, to a line E. and AV. across Poppenesset Island, thence on 
same line E. to centre of boundary channel, between Barnstable and Marsh- 
pee, thence by said channel N. to a line drawn due E. from Quawker's R. 
(mouth) and thence by shore to Marshpee R., from Sept. 15 to March 20. 

2. Except for proprietors, a written permit is necessary to fish in said 
waters, given by Marshpee treasurer, and specifying time and place. Only 
hooks and lines under any circumstances. 

3. District in legal meetings may make by-laws not repugnant to this act, 
and has all income. 

4. Penalty, act and by-laws, |20 each offence. 

5. Holders of trout known to have been taken contrary to this act, 50 cents 
each fish. 

6. Parents, masters, and guardians are liable for such offences in minors. 

7. District in regular meeting, having announced their object in the war- 
rant, may lease its trout and herring fishery, for not above 20 years each 
lease, appointing, if they like, two or more fish-wardens. Prosecutions within 
one year. 

8. 36, 1849, and 5, 186, 1853, and 105, 1859, are hereby repealed. 

9. Effect after March 1 next. [Feb. 24, I860. 

[Chap. 82.] 

1. G. Winslow, J. D. Wilson and J. Crane, of Freetown, associates and 
successors, are hereby corporated into Assonet Fishing Company to carry on 
alewive culture and fishery in said river and bay and waters connected there- 
with, altering .dams and making raceways, and doing what they like consist- 
ently with 44 R. S. and 68 G. S. 

2. Persons without permission, taking, catching or hauling ashore any her- 
ring in said waters, |3 if catch be less than 1 barrel, $5, if more, per barrel. 

3. Damage done by said company compensated as in case of highways. 

4. This act does not authorize taking of property private without consent, 
nor does it interfere with existing fishing privileges, except as to herring, of 
people of Freetown. 

5. Effect on passage. [March 17, 1860. 



1869.] SENATE—XO. 3. 43 

[Chap. 89.] 

1. Town of Plymouth, annual meeting, !Marcli or April, and TVareham 
annual meeting in November, e.acb year, shall ballot for a committee, maxi- 
mum 3 persons, sworn like other town officers ; to report yearly in March, 
after a public notice of ten days at least, the sale, at public auction, of the 
right to take alewives and shad in Agawam and Half-Way Pond R's at 
places, not above 2, each town, and times, not more than 3 days a week, as 
said committee shall announce in notice, in which also manner of taking and 
price shall be specified, latter not above 25 cents per 100 for alewives or 4 
cents each for shad, provided, that said committee may fix one place in "Ware- 
ham and one day each week for shad, difierent from those for alewives. 

2. Committees JOrom these towns shall notify each other in alternate years 
forever, through town clerks, time and place of their meeting 10 days at least 
before the time of meeting, and present members form a quorum, the town of 
Plymouth beginning. 

3. Neglect in choosing committees, or in giving notice, subjects the town 
so neglecting to 8100 each time. 

4. Only purchasers and agents can fish in said rivers or waters therewith 
connected between April 1 and June 16, both inclusive, under penalty §5 to 
$50 each ofience. 

5. The dam-owners and occupiers on said rivers shall keep a fishway open 
from April 15 to June 15, under penalty of §100, and the committee may open 
neglected dams at expense of owners : provided, no unnecessary damage be done. 

6. Makers of weirs and obstructions, and seiners and takers acting contrary 
to committee's orders between April 15 and June 15, suffer penalty of 85 to 
850 each offence, and committee may remove obstructions at expense of their 
maker, seize seines and complain to town treasurer of offences. 

7. Treasurers of said towns, on complaint of said committees, shall sue for 
recovery of any forfeitures under act, or regulations under it, and fines and 
forfeitures, and proceeds of fishery and expenses of suits shall be divided between 
the towns ; withholding dues punished by action on the case, by one-half amount. 

8. Buyers of fish rights shall conform to the regulations of committees pub- 
lished as aforesaid ; penalty 85 to 850. 

9. Committee-man may be witness in such case. 

10. Plymouth committee chosen last April, and Wareham committee of last 
November, as to alewives, under existing acts, shall present year act as com- 
mittee under this act, and they and future committee-men under this act 
shall have 81-25 each every day of service, from fishery proceeds. 
11. Inconsistent legislation repealed. \_Marc'h 20, I860. 

[Chap. 91.] 

1. N. and D. Sudder, W. Chipman, E. Sears, associates and successors, 
corporated into 9 Mle Pond Fishing Co., to open way from 9 M. Pond and 
Long Pond to tide-water and keep it open, subject to powers and restrictions 
of 41 R. S. and 68 G. S. 

2. Herring fishing their waters their property and trespass is liable to pen- 
alty of 83 less than a barrel, and 85 if more per barrel, action of tort in the 
name of corporation. 



44 RIVER FISHERIES. [Jan. 

3. Private property not used without consent, and abutters on said waters 
may become members if they apply within 6 mos. after the organization of 
said company, and pay share of previous expenses. 

4. Persons, not members, suffering damage by opening of canal or drain- 
ing, may, if parties in interest fail to adjust, appeal to county commissioners, 
Barnstable, and appeal from them.to Barnstable superior court. 

5. Corporation may hold $2,000 in real estate over and above right of 
fishery above mentioned. 

6. Capital stock $1,000 ; shares $10 each ; with right of increase to $3,000. 

7. Existing privileges, said ponds, are not thus transcended, and the whole 
act is void if not approved by majority of voters present and voting in town 
meeting. 

8. Effect on passage. [March 20, 1860. 

Fishing Acts, General Statutes, 1860. 
[Chap. 83.] 

1. Putting or throwing into waters of the State, to destroy fish, any coculus 
indicus (Indian berry or cockle,) or any poison, pure or mixed, under penalty 
$10 each offence. 

2. Takers of pickerel and trout in waters of State, unless by hook and line, 
and all takers of pickerel December 1 to May 1, under penalty $1 each fish, 
guardians being liable for minors, but this section does not apply to towns not 
adopting, nor does it to Marshpee Statutes. 

3. Prosecutions within 30 days.* 

[1859 —Chap. 54.] 
Section 3, chap. 195, 1837, is hereby amended by striking out the words 
" five dollars," and inserting, " $1 each fish so taken." [^Feb. 19, 1859. 

[Chap. 90.] 
Bights, duties, benefits or privileges, held by Pembroke or Hanover, or 
both, under act of 1792, " as to alewives in Indian Head R. and Pond," are 
hereby extended to Hanson and Hanover. IMarcJi 7, 1859. 

[Chap. 105.] 

1. 1, 36, 1849, is hereby amended so that no trout shall be taken in 
Marshpee B. from Sept. 15 to March 20. 

2. 5, 186, 1853, is hereby amended so that Marshpee selectmen may lease 
trout and herring fishery of said district according to said section, not above 
20 years at any one lease. \_March 17, 1859. 

[Chap. 106.] 
1, 30, 1857, is hereby amended by striking out ^^ provided," and inserting, 
" that the provisions of said Act shall not extend to towns not adopting." 
[March 17, 1859. 

[1858 —Chap. 65.] 
1. W. y. Baker et al. corporated Baker's Pond and Drain Fishing Co. in 
Yarmouth ; can open outlet from Baker's Pond to Bass R. for alewife fishery, 
subject to 44 R. S. 

* The other Fishing Acts, General Statutes, chap. 49, relate solely to the inspection of 
fish, specifying the quality of Nos. 1, 2 and 3 salmon and shad, &c. M. W. 



1869.] SENATE— No. 3. 45 

2. Catching, without leave, said waters and within 100 yds. of Baker's 
Drain, penalty $2 less than barrel, $5 per barrel if more. 

3. Eflfeet one year from passage if town Yarmouth accepts. \_March 22, 1858. 

[Chap. 94.] 

1. District Marshpee can in legal meeting, called for this, make and enforce 
by-laws as to pickerel and perch, hooks and lines, all seasons. 

2. District may in legal meetmg, if notice be given in warrant that subject 
will be acted upon, allow selectmen to let whole or part of both, or either, 
for not above one year, to any person, on terms of by-laws. 

3. Takers of fish contrary to by-laws, under penalty $1 to $20 ; half to 
prosecution, half to district. 

4. Inconsistent legislation hereby repealed. [J^Iarch 26, 1858. 

[Chap. 95.] 
1850, 6, and 1855, 156, shall apply to all persons and any kind of net 
within prescribed limits. 

[Chap. 130.] 

1. Seines and nets shall not be used within half mile from mouth of any 
stream running from any Falmouth Pond into sea or Vineyard Sound 
between Nobsque Pt. and Waquoit Harbor, from March 20 to September 20 
inclusive, each year. 

2. Penalty, violation not above $100 each offence. 

3. Fines recovered on complaint of inhabitants of Falmouth ; half to com- 
plainant, half to Commonwealth. 

4. Inconsistent legislation hereby repealed. {l^Iarch 27, 1858. 

[1857.— Chap. 30.] 
1. Pickerel and trout never to be caught unless by hook and line, and 
pickerel cannot be caught at all between December 1 and May 1. Penalty, 
$1 each fish. Justice of the Peace ; half to complainant, half to Common- 
wealth ; but town meetings may suspend this act not above 1 year. \_March 25, 
1857. 2 R. S. 55, 2. 

[Chap. 85.] 
3. Sections in relation to menhaden, Duxbury, Plymouth, and Kingston. 
[AprU 24. 

[Chap. 87.] 

1. B. Norton, D. Norton, E. T. Smith, associates and successors, corporated 
into the " Lagoon Pond Co.," in Dukes Co., and can build a dam across said 
pond about or from part called Long Pt., to fish for herring and perch : 
provided, that all persons may fish in said pond with hook and line, and spear 
eels and dig clams. 

2. Dam to be made within 2 years passage of act wide and strong enough, 
and with good bridge enough, to serve as a public highway. 

3. Dam shall not injure by height meadows near by, or injure any existing 
rights. 

4. For above purpose the company shall be clothed with powers and 
liabilities of corporations. 

5. Taking, without leave, fish from said pond, except as provided in this 
act, under penalty of $20. \_April 24, 1857. 



46 RIVER FISHERIES. [Jan. 

[1856.— Chap. 14.] 

1. People of Ipswich, Essex county, between April 1 and June 1, Sundays 
excepted, may take alewives from Ipswich R. in dip nets, but at no other 
time. 

2. Between April 1 and June 1, the using of seines or drag-nets is forbid- 
den in said R. Penalty $150, one-half to complainant. 

3. Inconsistent legislation repealed. 

4. Effect from passage. [Feb. 13, 1856. 

[Chap. 45.] 

1. Pocha Pond Meadow and Fishing Company, Edgartown, Dukes Co., 
successors and assigns, given exclusive right to take, by seines, nets, etc., 
between March 1 and July 1, herring from Pocha and Capepoge ponds or 
tributary waters. 

2. Using nets, taking, or trying to take herrings in said waters without 
consent of said company under penalty of $20 each offence, and an addi- 
tional sum of $20 each and every barrel so taken to company. 

3. Hindering herring on passage in pond or outlet, $100 each offence to 
company. 

4. Recoveries in action for debt. 

5. Shares to the number of 16. 

6. Inconsistent legislation repealed. 

7. Effect on passage. [March 11, 1856. 

[Chap. 50.] 

1. Mayor and aldermen and selectmen along tide-waters can authorize 
building of fish weirs in said waters, within town or city limits, for not above 
5 years, provided such weirs shall not interfere with navigation. 

2. Wilful injury or destruction of such weirs, or unlawful capture of fish 
therein, under penalty not above $20 and liability to damage in civil suit. 

8. Effect on passage. [March 15, 1856. 

[Chap. 52.] 

1. No seines or drag-nets, Ipswich R., Hamilton, Wenham, Topsfield, 
Boxford and Middleton. 

2. Each offence $100 ; half complainant, half Commonwealth. 

3. Effect on passage. [March 15, 1856. 

[Chap. 83.] 

1. Mill-dam owners. Barker's R. may, obeying fish committee of Pembroke, 
make fishways in dams for alewives up said R. to Indian Ponds in Pembroke 
and Hanson. Dam-owners shall build and repair at their own expense, and 
open them from April 10 to May 15 inclusive, each year. 

2. In case of neglect and refusal, waste-ways of dams shall be closed, 
according to act of May 19, 1853. 

3. Pembroke fish committee shall control the flow of water over the dams 
in Barker's R. and said ponds for convenience of alewives. 



1869.] SENATE— No. 3. 47 

4. Inconsistent legislation repealed. 

5. Effect on passage. lApril 3, 1856. 

[Chap. 176.] 

1. Seining, except for blue-fish, prohibited in Buzzard's Bay and tributa- 
ries, Sandwich and Wareham. 

2. Penalty not above 150, half to complainant. IMay 24, 1856. 

[Chap. 211.] 

1. B. Norton, B. Davis, and 0. E. Norton, associates, successors, and 
assigns, are corporated " Farm Pond Fishing Co., Edgartown, Dukes Co.," 
can close outlet and make another where they like in their own grounds to 
create herring fishing. 

2. With seines and nets or otherwise can take herring, pond and outlet, 
according to vote of proprietors. 

3. Taking, or attempting, without leave, ^10 each offence said company, 
and $10 more each barrel : provided, other fish may be taken. 

4. Present owners of land along pond or outlet have but one share each, 
and can create no more, but may divide their shares. 

5. Existing rights untouched. \_May 30, 1856. 

[Chap. 214.] 

1. No seining or dragging nets within one mile of south side of Barnstable 
and District Marshpee, between Points Succanesset and Gammon, from April 
1 to Nov. 1, each year. 

2. 16, 55 R. S. as to shell-fish in town of Chatham, extended to above 
places. 

3. Violations, $20 to $100, with costs, in action of tort by any inhabitant. 

4. Boats, craft or seines unlawfully used may be detained, not above 48 
hours, to attach, for security by due process of law, with costs, by any inhab- 
itant ; to be discharged on payment of highest penalty for boat or craft, and 
lowest for a seine. 

5. Forfeitures, half complainant, other half to town or district, according 
to complainant's residence. 

6. Bonajide seining for mackerel and menhaden not meddled with. 

7. Effect on passage. lAIay 30, 1856. 

[Chap. 225.] 
Town Orleans, legal town meeting, may enact laws to regulate the fisheries 
of Pleasant Bay and inlets within limits of town. Above laws shall not 
infringe on Mass. laws. ^May 31, 1856. 

[Chap. 248.] 

1. Boats, vessels or nets may be taken from those using them in violation 
of laws protecting Ipswich R. by constables, and kept till lowest fine be paid, 
or bond be given. 

2. Effect on passage. IJune 3, 1856. 



48 RIYER FISHERIES. [Jan. 

[Chap. 285.] 

1. Use of nets or seines within one mile of shore within town of Edgar- 
town, except in Oyster Pond, from April 1 to October 1 inclusive, each year, 
prohibited, and only inhabitants can use them at any time. Seining of 
mackerel and menhaden is exempted. 

2. Violation not above $300 each offence, and boats, &c., may be seized, 
not above 48 hours, by appointee of town Edgartown. 

3. Edgartown can choose at town meeting proper number of fish-wardens, 
sworn to duty, to prosecute under act, half penalty going to them, half to 
Commonwealth. 

4. Recoveries made in competent court. 

5. Effect on passage. [June 6, 1856. 

[Chap. 289.] 
' 1. Essex Company before Feb. 1, 1857, shall make and forever maintain in 
their Lawrence dam, free passage fishway during April, May, June, September 
and October, each year, under penalty SlOO to S500 each day of neglect 
after said Feb. 1, half complainant, half Commonwealth. 

2. No spearing, netting or seining months aforesaid within eighty rods of a 
dam or fishway entrance. 

3. Offences under 2 under penalty not above SlOO, half to complainant, 
half to Commonwealth. 

4. Inconsistent legislation repealed. [June 6, 1856. 

[Resolves.— Chap. 58.] 
That governor and council may appoint 3 commissioners to ascertain and 
report, next session general court, as to artificial breeding of fish, and intro- 
duction of same into this Commonwealth under law; to keep account of their 
expenses, to be audited and allowed by Gov. and Coun., and paid by warrant 
of Gov. from treasury : provided it does not exceed $1,000. [May 16, 1856. 

[1855.— Chap. 39.] 

1. Inhabitants Brewster can prohibit obstructions to alewives and catching 
the same by persons not authorized the town within ^ mile east of the mouth 
of Mill Creek, or outlet of Stony Brook, in Brewster Bay, and on west of 
said boundary to line of town Dennis, from April 20 to June 20 : provided, 
such prohibition shall not affect other fish. 

2. Penalty, each offence not above $20. 

3. Effect on passage. [March 9, 1855. 

[Chap. 51.] 

1. A. Paine and T. Jarvis can make fish-weirs on their land in Brewster : 
provided, said weirs, etc., be not within ^ mile of Stony Brook. 

2. Penalty, taking fish without their permission not above $15 each offence. 

3. Effect on passage. [March 14, 1855. 

[Chap. 75.] 
1. Young of Chatham can make a fish-weir on north side of new harbor, 
flats near Nauset beach, in Chatham, Barnstable : provided, such weir injures 
no rights of others. 



1869.] SENATE— No. 3. 49 

2. Trespassing or damaging, $20 penalty. 

3. Effect on passage. \_March 24, 1855. 

- [Chap. 84.] 

1. H. L. Eldrldge and associates are authorized to make fisb- weirs, etc., in 
tide-waters junction of channel running south from Broad Creek and Crooked 
Channel in south-east part of Orleans, to take fish : provided^ said weir does 
not obstruct navigation or interfere with the rights of others. 

2. Injuring weir and taking fish without leave, penalty $20. 

3. Effect on passage. \_Marcli 24, 1855. 

[Chap. 88.] 

1. T. Sparrow and associates in Chatham can make a fish-weir from west 
shore of Monomoy beach, south side of Steward's Hole and extend same not 
above 800 yds. west into Chatham Bay, county Barnstable, with all privileges: 
provided^ said weir does not interfere with navigation or others' rights. 

2. Injury to weir or fishing without leave, penalty not above !$20. 

3. Effect on passage. \_March 26, 1855. 

[Chap. 90.] 

1. B. "W. Eldrldge, F. Joseph, C. Perry and associates may make fish-weir 
near Kilt Pond Point south shore of Dennis : provided^ no injury to existing 
rights. 

2. Obstructions and illegal capture, penalty $20. 

3. Effect on passage. \_March 26, 1855. 

[Chap. 125.] 

1. I. Wixon and S. Whittemore can make a fish-weir near Hill Pond 
Point, in Dennis : provided^ no prejudice to existing rights. 

2. Penalty, $20. 

3. Effect on passage. [March 31, 1855. 

[Chap. 154.] 

1. E. Rogers, Jr., and associates can make a fish-weir near mouth of 
Crooked Channel and Its junction with Little Bay, to take fish : provided^ no 
prejudice to existing rights. 

2. Penalty, $20. 

3. Effect on passage. \_April 9, 1855. 

[Chap. 156.] 

1. Penalty of 3d section, Feb. 5, 1853, amended to not above $500, for use 
of town of I^antucket. 

2. Effect on passage. [^^ri7 9, 1855. 

[Chap. 162.] 

1. J. Tuttle and associates may make fish-weir in Harwich, on flats east of 
Andrews R., S. Harwich, so called : provided, no prejudice to existing rights. 

2. Penalty, $20 each offence, for use of the prosecutor. 

3. Effect on passage. \_April 10, 1855. 

7 



50 RIVER FISHERIES. [Jan. 

[Chap. 171.] 

1. Inhabitants Ipswich and vicinity, Essex County, may use dip-nets in 
Ipswich R., except on Sundays. 

2. Use of seines and drag-nets in Ipswich town, Ipswich, under penalty 
not above $50. 

3. Effect on passage. [April 10, 1855. 

[Chap. 173.] 

1. Fish-weir rights given to "W. W. Eldridge, J. Eldridge and W. N. Rog- 
ers in tide-waters near Clam Pt. : provided, no prejudice to existing rights. 

2. Penalty, $20. 

3. Effect on passage. [April 10, 1855. 

[Chap. 175.] 

1. No seining in Apponigansett R., in Dartmouth, or tributaries, north of 
line running south-west from Ricketson's Pt., across said river. 

2. Penalty, $15 to $50, use of town. 

3. Effect on passage. [April 14, 1855. 

[Chap. 208.] 

1. Inhabitants of Danvers, Beverly and vicinity, Essex County, may 
always take fish from Porter's, Crane and "Waters' R's, within the towns 
above named. 

2. Taking in said rivers w4th seines or nets, penalty not above $50, one-half 
to town where offence is, one-half to prosecutor. 

3. Anybody may take fish in any manner whatever below Horse Pasture 
Point, west side Bass R., and near or below the mouths of rivers named 
in first section. 

4. Effect on passage. [April 18, 1855. 

[Chap. 212.] 

1. Fish-weir privilege, G. Weaver and associates, tide-waters, Yarmouth, 
Lewis Bay, with usual proviso as to existing rights. 

2. Penalty, $20 each offence, benefit of prosecutor. 

3. Effect on passage. [April 18, 1855. 

[Chap. 272.] 

1. A. Mayhew, G. Mayhew and associates must build a good fishway, both 
for ingress and egress through creek leading to Squipnocket Pond, Town of 
Chilmark, Dukes County, during usual season. 

2. Obstructions, $20 each offence, for use of prosecutor. 

3. Effect on passage. [May 2, 1855. 

[Chap. 279.] 

1. Selectmen Yarmouth and successors may permit seines at discretion, 
permits in writing, between December 1 to April 1, each year, in following 
ponds, viz. : " Bowman's Pond," " Little Pond," and " Perch Pond." 

2. Using seines without permission of selectmen, penalty $5 to $100 each 
offence, one-half to complainant, one-half to town. 



1869.] SENATE— No. 3. 51 

3. Selectmen sliall regulate disposition of fish from said ponds, securing to 
inhabitants a part. 

4. Inconsistent legislation repealed. 

5. Effect on passage. \_May 2, 1855. 

[Chap. 299.] 

1. Owners Trap's Creek Fishing Company, Edgartown, Dukes County, 
associates and successors, can take all kinds of fish, by seine or otherwise, in 
Trap's Pond, from April 1 to November 1, each year. 

2. Using seines without their consent, $20 each offence, and $10 in 
addition each barrel of perch, recovered by indictment. 

3. No person whatever can seine perch from April 1 to November 1. 

4. All inhabitants of Commonwealth can use hooks and lines at any time. 

5. Inconsistent legislation repealed. 

6. Effect on passage. \_May 4, 1855. 

[Chap. 301.] 

1. O. Brooks, Jr., associates and successors. Town of Harwich, can remove 
obstructions in Coy's Brook, from the branch of Herring B., near Hall's 
Island, to Clark's Pond and Flax Pond, to propagate and catch herring or 
alewives for their own benefit : provided^ no prejudice to existing rights. 

2. Obstructions and illegal capture, $2 to $20 each offence. 

3. Effect on passage. \_May 4, 1855. 

[Chap. 319.] 

1. W. Eames, of IMarshfield, authorized to propagate herring or alewives 
in his pond, and to make fishways from said pond to Cove Creek, having 
right to catch in said creek, within forty rods below dam in said pond : pro- 
vided^ said distance does not extend on said stream below its junction with 
stream from Carver's grist mill. 

2. Taking without his consent, or obstructing, penalty $10, benefit of 
Eames. 

3. Inconsistent legislation repealed. 

4. Effect on passage, and for twenty years. \_May 7, 1855. 

[Chap. 324.] 

1. TV. Gifford, S. Dillingham, associates and successors, Falmouth, Oyster 
Pond B. Company, authorized to regulate river running from Oyster 
Pond to Hogg Island Harbor, for alewive fishery, j^^'^serving individual 
rights. 

2. Unlawful taking, $2 to $20, use of prosecutor. 

3. Effect on passage. [May 10, 1855. 

[Chap. 337.] 

1. Nantucket town-meetings can make expedient by-laws for ponds and 
creeks within the said town, preserving private rights. 

2. Effect on passage. [Ma?/ 15, 1855. 



52 RIVER FISHERIES. [Jan. 

[Chap. 401.] 

1. From passage of this act no person can, in any way, catcli shad or ale- 
wives in Taunton G't R. and Newmasket R., from March 1 to June 10, both 
inclusive, except as hereinafter provided. 

2. Cities and towns hereafter named shall yearly, in meeting held before 
the 15th of November sell, public auction, buyer giving bond for payment, 
the privilege of taking shad and alewives between said days inclusive next 
year, with seines, as follows : Fall River and Freetown, each to sell a one- 
seine privilege ; Somerset, Dighton, Berkley and Raynham, each a two-seine 
privilege ; Taunton, a three-seine privilege, all being sold separately, and 
purchasers locating themselves anywhere on said river with consent of the 
owners along the shore. 

3. Seines used in Taunton and Raynham and in Dighton and Berkley, 
above Rocky Pt., not above 35 rods, and in Somerset, Freetown and Fall 
River, not above 40 rods ; none of said fish to be taken within 1^ miles of 
dam, near King's Bridge, near Squawbetty Village. 

4. Seines to be in water only while casting and hauling and nothing to 
hinder fish going up, must be put in river below Squawbetty Village, within 
time hereinafter mentioned. Locations to be designated by signals above 
and below, unchanged during season, all being 40 rods above Rocky Pt. and 
45 below Rocky Pt. No seining without the compass of two parallels, 1 p't 
10 rods above upper limit, and the other from p't 10 rods below lower limit of 
aU locations above Rocky Pt., and at right angles with a line drawn from 
such upper and lower limits or without the compass of two parallel lines, 1 
from p't 30 rods above upper limit and other from p't 30 rods below Rocky 
Pt., and at right angles with line between such upper and lower limits ; aU 
such distances being measured on bank of said river. Seines not to be swept 
above 50 rods said p't and 75 rods below said p't at any one sweep. 

5. No taking, said rivers, between 9 o'clock Friday evening and 4 o'clock 
Monday morning, March 1 to June 10, both inclusive, nor above Berkley 
and Dighton Bridge between 12 Thursday night and 4 Monday morning, 
within said time. 

6. Purchasers of fishing privileges shall select their locations for fishing, and 
file a certificate thereof, town clerk's ofiice, before March 1 each year. 

7. The wardens of section 9 may seize boats, tackle, etc., used in violation 
of this act, in any waters of said vicinage, except Broad Cove. 

8. The fisheries in Newmasket R. shall be entirely under the control of 
Middleborough and Lakeville, to use or sell as they may decide in legal 
meetings, but only to be used between the hours of 4 A. M. on Monday to 9 
P. M. on Friday, and only at times and places prescribed in section 1. Net 
proceeds to be divided between said towns according to ratable polls. 

9. Town-meetings and mayor and aldermen shall choose by ballot in March 
or April, 3 or more persons for fish wardens to be sworn within 10 days of 
election. Their neglect, under penalty, §10, as to said oath and towns not 
choosing, shall pay ^100, action of tort, use of prosecutor. 

10. Dam and mill owners at King's Bridge, Squawbetty Village, and all 
other similar owners shall keep open suitable fishways within time of section 
1 : provided^ that it shall not be necessary to maintain such way before noti- 



1869.] SENATE— Xo. 3. 53 

fication in spring. Penalty, §20, use of prosecuting fish warden, action of 
tort 

11. All violations of this act, under penalty, §5 to §50, action of tort in 
any competent court to the use of the prosecutor or on complaint and convic- 
tion before any proper justice of the peace not above $20, and imprisonment 
not above 60 days. And in any suit or complaint instituted under this sec- 
tion, there shall be a right of appeal to the court of common pleas. 

12. Effect on passage, inconsistent acts repealed. ^May 19, 1855. 

[1854.— Chap. 231.] 

1. Grant to Isaac Keith, heirs and assigns, exclusive right of taking fish in 
Scusset R., leading into "W. Sandwich mill-pond, only on Monday, Wednes- 
day, Friday and Saturday : provided, grantees keep open ways in dams to 
allow fish to go into mill-pond to spawn. 

2. Taking without grantee's leave, each offence, §10, one-half to complain- 
ant, one-half to grantee. lApril 7, 1851. 

[Chap. 285.] 

1. Herring Pond tribe Indians, can fish on W. bank of Herring R. in 
Sandwich, in their ancient ways, above weir on said river to land of heirs of 
N. B. Gibbs, dec'd, on days prescribed by selectmen as by act of March 27, 
1831, and shall also receive annually from town Sandwich, 2 bbls. each 
family. 

2. Effect on passage. lApril 12, 1851. 

[Chap. 53.] 

1. C. S. Nye, J. TVitherell, C. O. Nye, of N. Yarmouth, associates and 
successoi-s, corporated into Magonsett Fishing Co., and can regulate brook 
from Dam Pond to Wild Harbor, so far as necessary for alewive fishery with 
privileges and liabilities of 44 R. S. 

2. Catching within one-eighth mile mouth of said brook, §2 if less than one 
barrel ; if more, §5. 

3. Injured individuals, remedy against corporation as in case of highways. 

4. Effect on passage. [MarcJi 17, 1853. 

[Chap. 95, 1834, 126.] 
1. Takers of fish in Herring R. or the spawning ponds thereto attached, at 
times not allowed by selectmen, penalty 81 to §20 each offence, or imprison- 
ment not above 60 days in county jail. [March 26, 1853. N. B. 1854, 285. 

[Chap. 350. Sp. Laws, vol. 1, p. 269: 1814, 218; 1848, 116; 1852, 66.] 
1. Inhabitants Pembroke can take at usual weir on North R. or stream to 
Indian Ponds, following days each week : Tuesday, Wednesday, Thursday, 
and Friday, sunrise Tuesday, sunset Friday inclusive, these times only ; pen- 
alty, §50 each day of violation, one-fourth to complainant, three-fourths to 
towns Marshfield, Scituate, and S. Scituate, in proportion to inhabitants by 
last census. 



54 RIYER FISHERIES. [Jan. 

2. Taking fish, stream from North R. to said Indian Ponds, or tributaries 
except at weir, between April 10 and May 15, inclusive ; penalty, ^20 each 
offence, one-half to complainant, one-half to town of Pembroke. 

3. Inhabitants from towns on said river may take with ten seines only, as 
follows : Pembroke, Scituate, and S. Scituate, selling at auction, own benefit, 
each a two-seine privilege, and Marshfield a four-seine privilege. 

4. Taking unauthorized by this act ; penalty, $20 each trespass for town 
where offence is. 

5. Mill-owners, North R,., and streams running thence to Indian Pond, shall 
take up waste-ways of said mills on or before April 10, and keep up till May 
15, that fish be not obstructed, neglect or failure, penalty $100 each day of 
neglect, going to towns Marshfield, Pembroke, Scituate, and S. Scituate. 

6. Expenses of removing obstructions in streams between North R. and 
Indian Ponds shall be borne by said towns in proportion to the number of 
their inhabitants, who can raise money for the same. 

7. Penalties, competent courts. 

8. Inconsistent legislation repealed. 

9. Effect on passage. [Alay 19, 1853. 1856, 83. 

[Chap. 377. 1838, 19; 1844, 65.] 

1. Seines and drag-nets forbidden in Agawam and Half- Way Pond Rivers, 
March 1 to October 1, penalty to Plymouth and "Wareham, $20 each offence. 

2. Forfeitures to be collected and disposed of, same way as forfeitures 
under act of Feb. 26, 1838. 

3. Annual conventions Plymouth and Wareham, failing by neglect or dis- 
agreement, to prescribe time and manner for opening fishways in dams on said 
rivers, then either committee feeling aggrieved on application Plymouth 
County commissioners, who shall then have same powers as original commit- 
tee, and shall then fix time and manner, penalties being same as those now 
existing, and shall have power to open dam, if necessary. If either of the 
county commissioners shall live in Plymouth or Wareham, his place shall be 
supplied by one of special commissioners who is a non-resident. 

4. Inconsistent acts repealed. 

5. Effect on passage. \_Mai/ 25, 1853. 

[1852.— Chap. 35.] 

1. Seines prohibited in Osterville Harbor, or Poponesset Bay, or any waters 
in town Barnstable or Marshpee district, southerly side ; penalty, $10 to $100, 
one-half to town use, one half to prosecutor. 

2. Effect on passage. [^Marcli 15, 1852. 

[Chap. 48. Sp. Laws, vol. 2, p. 504; vol. 3, p. 398; 1823, 97; 1848, 87.] 
1. City council, Lynn, to choose each April or May five citizens to see to 
enforcement of laws as to fishways of shad and alewives, each to be sworn. 
Majority said five to fix time, place, and manner of catching in Saugus R. 
and city streams : provided, no one takes above three days a week, and pro- 
hibitions be not above four days a week. Regulations to be posted in three 
public places, or published in newspaper. 



1869.] SENATE— No. 3. 55 

2. Majority can oblige dam and sluice-liead owners to maintain fishways 
between April 1 and June 20, and canal owners to keep enougli water in 
canals, and on neglect or refusal may open and maintain at expense of delin- 
quent, to be kept as long as they desire. Obstructing and injuring fish ; 
penalty, |20 each offence. 

3. Taking, against this act, SI to $10 each offence. 

4. Non-resident capturers not above S20 each offence. 

5. Committee to see to execution, and may enter bordering lands. Molest- 
ing them, $1 to $10. 

6. Fines, police court, use of city. 

7. Inconsistent acts repealed. 

8. Effect on passage. [March 26, 1852. 

[Chap. 66. Sp. Laws, vol. 1, p. 260. 18U, 128; 1848, 116.] 

1. No mesh nets North R., Plymouth Co., except between sunrise to sunset 
on Monday, "Wednesday, and Friday. 

2. Seine laws apply to mesh nets. 1853, 350; 1856, 83. [March 27, 
1852. 

[Chap. 68.] 

1. J. Howes, W. Crowell, 2d, J. Gorham, associates and successors. Flax 
Pond Fishing Co. Dennis can open brook from Sesuit creek, improving 
said creek to the sea, for alewive fishery, powers and liabilities of 44 R. S. 

2. Catching illegally, said waters, |2, use of Howes, etc., if less than bbl. ; 
$5 each bbl. if more than bbl. 

3. Damages of company to individual property indemnified. 

4. All inhabitants Dennis may be members, if they apply within three mos. 
from passage, and pay their proportion of accrued expenses. 

5. If company do not improve powers within three years, act will be void. 

6. Effect on passage. [March 27, 1852. 

[Chap. 92. Sp. Laws, vol. 3, 378; 1819, 11; 1820, 51; 1836, 130; 1837, 184; 1844, 63.] 

1. From passage, no taking shad or alewives with seines or nets, Palmer's 
E,., Rehoboth, Bristol Co., from April 1 to J u\yl: provided, people of Rehoboth 
may at legal meeting dispose at auction, highest bidder, scoop-net and seine 
privilege for any one year, on sufficient security being given. 

2. Town may sell privilege in sections, or otherwise, and purchasers and 
agents may take between Swanzey line and Orleans dam, three nights a 
week, from sunset, Wednesday, to sunrise, Saturday, and with not above two 
seines same time, day time only, three days each week, Thursday, sunrise, to 
Saturday, sunset, between Swanzey line and Miller's Bridge : provided, no 
shad or alewives be taken after July 1. 

3. Rehoboth town-meeting, March or April, may choose fish wardens, sworn 
to see to execution and prosecute violations, removing obstructions to fish 
between April 1 and July 1, entering lands, if necessary, as may lawful 
catchers and buyers : provided, they obey all regulations by fish-wardens, as to 
time and manner, and do no damage. Molesting fish-wardens and persons 
authorized by them, not above $20 each offence, recovered as in next section. 

4. Unlawful fishing and obstructing, <^20 each offence, use of county 



56 RIVER FISHERIES. [Jan. 

where offence was, or by action of debt, half to complainant, half to town 
where offence is. 

5. Inconsistent laws repealed. 

6. Effect on passage. [April 3, 1852. 

[Chap. 159.] 

1. J. Nickerson and E. Nickerson, Provincetown, Barnstable, fish-wier, 
flats, side of Long Pt., Provincetown Harbor, adjoining uplands of grantees, 
extending same to ebbing point. 

2. Taking without their leave, $5 less than 100 lbs., and ^5 every 100 lbs. 

3. Injured persons entitled to damage, as in highways. [April 27, 1852. 

[Chap. 151.] 

1. Selectmen and successors, Scituate and Cohasset empowered to regulate 
alewive fishing in stream from Scituate Pond to Cohasset Harbor, near town 
boundaries, annually disposing of said fisheries one year only, proper notice, 
public sale, improving and removing obstructions at expense of said towns 
equally, proceeds going equally, said towns. 

2. Acts of their majority shall be valid, if reasonable notice be given, and 
at least one man present from each town. 

3. Illegal taking, said stream above Doane's Mill, $10 each offence, benefit 
of purchasers of privilege, action at law. 

4. Dam-owners to open dams according to orders of selectmen, between 
March 1 and June 1 ; failure, $100 each offence, dam being open and kept 
open, owners' expense, hut no unnecessary expense shall be Incurred. 

5. Selectmen may be witnessses. 

6. Selectmen to regulate time, place, and manner of taking, hut no fish 
shall be taken on above four days a week, and non-observance of rules by 
purchasers shall be under penalty of $20 to $100 each offence. 

7. Said selectmen each to receive $1.25 out of fishery proceeds each day of 
actual service. 

8. Fines divided between said towns which can also join In suit. 

9. Effect on passage. [April 27, 1852. 

[Chap. 225.*] 
5. Alewive fisheries Mattapoisett R. and town mills remain property of all 
inhabitants of Rochester and Marion, alewlves to be sold to all families at price 
determined as majority of legal voters of both towns shall determine. Net 
proceeds ajoplled to liquidate debt Incurred for fishery, and, after such liqui- 
dation, to be paid according to number of Inhabitants in each town. All 
fishery matters to be In hands of three Inspectors chosen yearly, two from 
Rochester, one from Marion. [May 14, 1852. 

[1851.— Chap. 77. 1826, 54.] 

1. Seines, weirs, drag-nets, G't Pond, or connected waters, Edgartown, 
March 1 to Sept. 1, each year, $50 for each offence, half to town, half to 
prosecutor. 

2. Effect on passage. [April 25, 1851. 

* This Act sets off a part of Rochester as the town of Marion. 



18G9.1 SENATE— No. 3. 57 

[Chap. 98. Special Laws, 222, 289, Vol. 2. 1825, 63.] 

1. Seines or drag-nets, Waquoit Bay and Falmouth waters, 820 to §100, 
half to use of town, half to prosecutor. 

2. Effect on passage. [April 30, 1851. 

[Chap. 116. 1843,20.] 

1. People of Barnstable, Feb. meeting, to choose Herring R. Alewive 
Committee, to fix place and time not above five days a week when all the in- 
habitants may fish, having, in addition, all powers given to selectmen by 
1843, 20. 

2. Time of such taking, and for dam-owners to keep their fishways open 
not above 30 days each year, and individual legal rights are saved harmless. 

3. Sections 3 and 5 of 1843, 20, repealed. [3ia?/ 7, 1851. 

[Chap. 126.] 

1. Damage done by Pocha Pond Fishing Co. paid by said company 
according to assessment as in highways. 

2. Section 4 of April 25, 1848, is hereby repealed. 

3. Effect on passage. [May 7, 1851. 

[1850.— Chap. 6. 1833, 211.] 

1. After July 1, 1850, seining shall be unlawful within one mile shores of 
Nantucket, Tuckernuck, Smith's, Muskeekit, and Gravel Islands. 

2. Provisions of 16, 55 R. S. as to Chatham, extended to Nantucket. 

3. Violation this act, $50 each offence. 

4. Nantucket fish-wardens, at duly notified meeting, may be chosen to be 
sworn to do their duty and to prosecute under this act. 

5. Boats or crafts found within said limits, fish on board taken within said 
limits, shall be seized by fish-wardens and detained not above 48 hours, that 
they may be attached or arrested by due process at law, for security of pen- 
alty and costs : provided, the boats, etc., may be released on payment of the 
sum of penalty. 

6. Fines, half to treasurer of Nantucket, half to complainant. Fines and 
costs in action of debt. [Feb. 5, 1850. 

[1855, 156; 1858, 95. Chap. 73.] 

1. J. B. Crocker, C. Marston, associates and successors, corporated into G't 
Marsh Dyking, Water Power and Fishing Co., 44 R. S. 

4. They have exclusive ownei^ship of fishery created by their dike, and 
can regulate it and take fish to their use. \_March 14, 1850. 

[Chap. 99.] 

1. C. Weeks, associates and successors, land owners near pond in south of 
Chilmark, corporated Wequabsqua Fishing Co., to take fish within limits 
hereafter specified, according to 44 R. S. of Nov. 4th, 1855. 

2. All such land-owners may become members, and share in proportion to 
estimated value of their several meadows according to valuation of commis- 
sioners of sewers, 1848. 

8 



58 RIVER FISHERIES. [Jan. 

3. They can open a canal across neck of land called AVequabsqua to the 
sea, with exclusive control of fishery in such canal, and so much of pond as 
lies within 10 rods of head of said creek and sea or ocean within 50 rods of 
mouth of said creek. 

4. Unauthorized catching said limits, penalty, each offence, $5 to |20, 
half complainant, half to town of Chilmark. 

5. Notification first meeting to be published in " Vineyard Gazette." 

6. Effect on passage. [March 20, 1850. 

[Chap. 148. 1815, 83; 1821, 107; 1837, 135.] 

1. Act of Feb. 24, 1825, so far as it prevents the catching of alewives to 
the west of Job Chase's wharf, is hereby repealed. 

2. Effect on passage. [April 4, 1850. 

[1849.— Chap. 36.] 

1. No trout to be taken in Marshpee R., Barnstable Co., Sept. 15 to April 
1, each year. 

2. Only proprietors can take at any tim6 without written order from the 
treasurer of Marshpee, fixing time and place of taking. Only hooks and 
lines shall ever be used. 

3. Legal meetings, Marshpee district, may make by-laws, not conflicting 
with existing laws, and income of fishing shall go to district. 

4. Offences, act or by-laws, $5 each offence, and proprietors may be wit- 
nesses in trials on such process. 

5. Possessing trout known to be taken contrary to this Act, 50 cents each 
fish. 

6. Guardians liable for minors. 

7. Prosecutions within 60 days. 

8. Effect on passage. [March 16, 1849. 1853, 186 ; 1859, 105. 

[Chap. 37. 1814, 134; 1815, 83; 1837, 135.] 

1. Dennis and Yarmouth, Barnstable Co., can, in legal meeting, choose 
each 3 persons fish committee, each inhabitants of town for which they shall 
be chosen, sworn to meet annually on or before April 20, time and place 
according to majority, constituting, when united, a joint committee ; majority 
such joint committee can fix time, place and manner to take herring, or 
alewives or perch, in Bass R. and confluent waters, fixing the length of 
seines, nets, etc., and lines attached to the same, and grant permits inhabi- 
tants of either of said towns, fixing quantity of fish which each family in said 
towns shall receive from such catchers, and fix price, and by vote of said 
towns may sell at auction, to one or more persons, not more than one season 
at a time, upon terms directed by said towns or joint committee. 

2. One town choosing committee, other neglecting, former committee will 
have all rights under this act. 

3. Committee can keep natural channels open, and widen and deepen 
them if need be, and can have right of way over land of bordering proprie- 
tors, paying fairly, if demanded, without liability as trespassers, and molesta- 
tion of committee, or obstructing, under penalty of $20 each offence. 



1869.] SENATE— No. 3. 59 

4. Takers of alewives, herring, or perch, in Bass R., or streams connected 
or within half mile of mouth of river in any direction, against orders of said 
committee, under penalty, each offence, not above ^10 for catch less than 1 
bbl. ; for 1 bbl. or more, SIO to $20. 

5. Vessels, etc., found in said watei-s, or -within half mile of river's mouth, 
■with more fish than are allowed by said committee on board, or persons 
detected in taking illegally with seines or nets, not authorized by said com- 
mittee, any of said committee may seize such vessels, etc., not detaining 
above 48 hours to attach for costs and penalties. 

6. Fines and forfeitures this act go half to Dennis and Yarmouth, half to 
prosecutors, unless committee prosecute, when all forfeitures go to towns, 
before justice of peace. 

7. Inconsistent laws as to Dennis and Yarmouth repealed. 

8. Effect on passage. IMarch 16, 1849. 

[Chap. 64.] 

1. J. Higgins, Jr., et al. of Eastham, fish weir privilege at or near Cook's 
Brook, bay side of said town, from upland to low-water mark, hut without 
injury to navigation. 

2. Injuries to weir, illegal taking, penalty not above 820, and liability to 
injured parties to civil suit. [March 20, 1849. 

[Chap. 128. 1821, 97.] 
Seining and netting, harbors of ^ew Bedford and Fairhaven, or influent 
waters, north of line drawn due east from Almshouse in N. Bedford to Fair- 
haven, for any fish but menhaden, penalty $20 each offence, Police Court 
N. Bedford, or Justice of the Peace, for use of complainant. 1849, 219 ; 
1854, 293. [April 20, 1849. 

[Chap. 219. 1821, 97; 1849, 128.] 
Preceding act shall not apply to herring fisheries in Acushnet R. from 
Island Marsh to head waters. 1854, 293. [May 2, 1849. 

[1848.— Chap. 12.] 

1. Feb. 7, 1820, is hereby repealed, but persons liable under this act are 
not absolved. 

2. Statute laws in force prior to repealed act shall not be revived by this. 

3. Effect on passage. [Feb. 14, 1848. 

[Chap. 47.] 

1. Land-owners, abutting on Trap's Pond or Creek, shall each have one 
share only in said fishery, and no additional shares shall be created, but each 
owner may divide his share. 

2. Effect on passage. [March 18, 1818. 

[Chap. 116.] 

1. Act of Feb. 25, 1815, in so far as applying to ength of seines on Xorth 
R. is repealed, hut suits already begun shall not be interfered with. 

2. Effect on passage. [April 18, 1848. 



60 RIVER FISHERIES. [Jan. 

[Chap. 185.] 

1. J. Vinson, J. T. E. Gage, et al., associates and successors, corporated 
" Poclia Pond Meadow and Fishing Co.," Edgartown, and can close tlie outlet 
of said town, with causeway from 20-acre lot to Cape Poge beach in Edgar- 
town, hut causeway shall be of suitable width and kept in repair so that 
loaded carriages may pass over in safety, it being always free for travel, and 
new outlet must be made for said pond into Edgartown Harbor through lands 
of said proprietors, causeway being at place suited to draining said meadow 
and regulating herring fishing, hut suitable bridges shall be built over said 
creejc according to 44 R. S. 

2. Fines, $3 catch less than 1 barrel, catch 1 barrel or more, S5 each barrel 
so taken. 

3. Not to molest people of Edgartown in rights. 

4. Damages resulting from this act, commissioners Dukes Co., after hearing 
of interested parties, shall estimate and assess, and interested parties can 
appeal to a jury at same or next meeting of County Commissioners, as in case 
of highways. 

5. Owners of land, abutting said waters, may become members at any 
time before said outlet Is closed. 

6. Present owners, each to have one share ; no additional shares ; shares 
can be divided however. [^April 25, 1848. 

[Chap. 187.] 

1. Lynn, Saugus and S. Reading may, together or separately, enforce laws 
regulating alewive fishing in Saugus R. 

2. Inconsistent acts repealed. [April 25, 1818. 

[1847.— Chap. 40.] 

1. People of Tisbury, annnal town meeting, ]\Iarch or April, shall choose 
one or more discreet men as fish committee, to be sworn and to regulate ale- 
wive fishery in Chappaquonsett Pond and Creek in said town, and fix time, 
manner and place of taking and remove obstructions in said creek, and keep 
open fish passage from Vineyard Sound or sea into Chappaquonsett Pond, so 
that Inhabitants may have free fishery. 

2. Said committee shall post in three or more public places in said town 
on or before IVIarch 10, the rules of said committee. 

3. Opposition or obstruction to said committee, or unlawful taking, except 
at prescribed times and places, before any justice of the peace, not a Tisbury 
man, penalty not above S20 each offence, one-half to town, one-half to 
informer. 

4. Inhabitants may be witnesses. 

5. Selectmen of Tisbury can direct fish committee to sell such part of fish 
caught in said creek as will pay accrued expenses, but such part shall not 
exceed one-sixth of yearly catch. 

6. Damages sustained by land-owners, on whose land the fish is taken, 
indemnified by selectmen. Refusal by selectmen to be met by action on the 
case against town Tisbury. 



1869.] SEXATE— No. 3. 61 

7. Ko herrings or alewives to be taken from Vineyard Sound or sea "vvltliin 
1 mile of said Chappaquonsett Creek, or make new outlets from C. Pond, 
save by a vote of Tisbury legal meeting. 

8. Nothing in this act to prevent meadow-owners from draining or flowing 
through said creek when it can be done without prejudice to passage of fish. 
And nothing in this act shall affect suits now pending or legal rights. 
[March 4, 1847. 

[Chap. 94.] 
People Yarmouth may, at legal meeting, fix time, manner and place of 
taking alewives or herrings in Dexter R. and other watere connecting Coona- 
missett Pond with Vineyard Sound or sea, and also other rivers and waters 
heretofore used as herring fisheries, and adopt rules by them deemed expe- 
dient for the preservation of said fishery, dispensing fish privilege as they 
like and choosing committee of three to see to execution, and they shall be 
sworn. 

2. Selectmen, time being, shall post established regulations in three or 
more public places in said toAvn, within one week after said rules are passed. 

3. Persons taking unlawfully shall for each offence pay not above $5, and 
seining in Vineyard Sound in either March, April, May or June without 
leave of fish committee, $20 at most each offence. Fines, one-half to town, 
one-half to prosecutor, inhabitants witnesses, but this act does not affect legal 
rights. 

4. Acts of March 2, 1798, and March 1, 1799, as to alewives repealed In 
streams of Falmouth. 

5. Effect on passage. [March 17, 1847. 

[1846.] 
[N. B. — From this point, only laws of general application are given In full ; 
all others are merely alluded to for convenience of reference.] 

[Chap. 92.] 
This act transfei-s to Weymouth Iron Co. all fishery rights as to alewives in 
Black R., G't Pond and Whitman's Pond. [March 11, 1846. 

[1845.— Chap. 79.] 
As to passage-way in dam of Ipswich Manf'g Co. April 10 to June 1. 
[Feb. 26, 1845. 

[Chap. 91.] 
As to fish-way in Manning's Dam In Ipswich K [Feb. 28, 1845. 

[Chap. 130.] 
Incorporating White Pond Fishing Co. [March 15, 1845. 

[Chap. 149.] 
As to fishing In Little R. [March IS. 1845. 

[1844.-Chap. 63.] 
Vide 1852, 92. [March 7, 1814. 



62 RIVER FISHERIES. [Jan. 

[Chap. 65.] 
In addition to 1838, 19, as to alcwife fishery in Agawam and Half- Way 
Pond R's. [March 7, 1844. 

[1843.— Chap. 20.] 
1. As to alewives in Herring Pond, town of Barnstable. \_March 20, 1843. 

[Chap. 73.] 
As to fishery in Taunton Gt. R. Vide 401, 1855. IMarch 24, 1843. 

[1842.— Chap. 62.] 
Shad fishery, Monomoy Bay. [March 3, 1842. 

[Chap. 82.] 
Corporating Coy's Brook Fishing Co. [March 3, 1842. 

[Chap. 75.] 
Long Pond Fishing Co., Yarmouth. [March 3, 1842. 

[1841.— Chap. 61.] 
As to Skinnaquits Fishing Co. [March 6, 1841. 

[Chap. 76.] 
As to fisheries in Maddeket harbor, Nantucket. [March 13, 1841. 

[1840.— Chap. 24.] 
As to fishery. Long Pond, Nantucket. [March 7, 1840. 

[Chap. 37.] 
As to Monatiquot R., Braintree, etc. [March 18, 1840. 

[Chap. 45.] 
As to fishery North R., Plymouth Co. [March 18, 1840. 

[Chap. 67.] 
Corj^orating Sanchachautacket Fishing Co., Edgartown. [March 21, 1840 

• [1839.— Chap. 102.] 
As to fisheries in Barnstable and Marshpee. [April 5, 1839. 

[Chap. 83.] 
Corporating Trap's Creek Fishing Co. [April 3, 1839. 

[Chap. 123.] 
Corporating Eastham Fishing Co. [April 6, 1839. 

[Chap. 134.] 
As to Ipswich R. [April 9, 1839. 

[1838.— Chap. 12. 1860, 89; 1853, 377; 1844, 63.] 
As to Agawam and Half-Way Pond R's. [Feb. 26, 1838. 

[1837.] 
Chap. 18 in add. to 1831, 73. [Feb. 22, 1837. 



1869.] SENATE— No. 3. 63 

[Chap. 99.] 
Fish Weir Co. in Orleans. [March 25, 1837. 

- [Chap. 118.] 
North Falmouth Fishing Co. [Ajjril 7, 1837. 

[Chap. 135.] 
In addition to 1815, 83, as to fishing in Dennis. [April 12, 1837. 

[Chap. 159.] 
Rock Harbor Fishing Co. [April 13, 1837. 

[Chap. 18i.] 
Added to Palmer R. Act, 1803, 116. [April 18, 1837. 

[Chap. 193.] 
Act as to alewife fishing in Middleborough. [Api'il 18, 1837. 

[Chap. 195.] 
Fishery in Newbury. [April 18, 1837. 

[1836.— Chap. 56.] 
As to alewife fishing in Wellfleet. [March 23, 1836. 

[Chap. 130.] 
As to fishery in Palmer's R. [Ajyril 4, 1836. . 

[Chap. 158.] 
As to fishery in Mystic R. [April 8, 1836. 

[Chap. 177.] 
Corporating Andrews Fishing Co. in Harwich. [April 9, 1836. 

[Chap. 205.] 
Corporating Orleans Fishing Co. [April 11, 1836. 

[Chap. 218.] 
As to alewife fishery in Wewautic R. [Ajml 13, 1836. 

[Chap. 198.] 
As to alewife fishery in Weymouth. [April 9, 1836. 

Fishery Act of the Revised Statutes, chap. 55, same as 61 General Statutes. 

Ancient Charters. 
[Page 148, Chap. 63.] 
2. All householders have free fishing in any great ponds, bays, coves and 
rivers, so far as the sea ebbs and flows within their own town, unless freemen 
of said town or general court have otherwise appropriated them : provided, 
that no town shall appropriate to any persons any great pond, containing 
above 10 acres of land, and that no man shall come upon another's land 
without their leave otherwise than as hereafter expressed. 
The which is clearly to determine. 



64 RIYER FISHERIES. [Jan. 

3. It is declared that in all creeks, coves and other places about and upon 
salt water, where the sea ebbs and flows, the proprietor of the land adjoining 
shall have propriety to the low-water mark, where the sea doth not ebb 100 
rods, and not more wheresoever it ebbs further : provided^ that such propri- 
etor shall not by this liberty have poAver to stop or hinder the passage of 
boats or other vessels in or through any sea, creeks or coves, to other men's 
houses or lands. 

4. And for great ponds lying in common though within the bounds of some 
town, it shall be free for any man to fish and fowl there, and may pass and 
repass on foot through any man's propriety for that end, so they trespass not 
upon any man's corn or meadow. 

Abstract of Pkixcipal Decisions. 
[1641, 47.] 

As to fishing, &c., in tide-waters, it seems to have been intended to restrict 
the right to householders in the town where the waters were. But this part 
of the ordinance is not at all regarded in practice, and probably never was 
intended to apply to the common law right of every citizen in those waters. 
Otl-.erwise as to ponds it is believed that great ponds, that is, of more than 
ten acres, have in many instances become private property. " But whether 
the owners can restrain all other persons from Jishing therein is not known to 
have been decided." — -Metcalf on Contracts^ p. 299. 

This statement of Judge Metcalf is the latest authority on the rights of 
riparian owners of great ponds, and the probable course of the law in the 
matter can only be inferred from the cases which have brought the matter 
indirectly before the courts. 

In the case of West Roxhury vs. Stoddard, the tendency seems to have been 
to favor the common law rights of the public against those of riparian owners. 
Judge Hoar gave as his opinion that " fishing, fowling, boating, bathing, skat- 
ing or riding upon the ice, taking water for domestic or agricultural purposes, 
or for use in the arts, are lawful and free to all persons, upon these ponds, if 
such persons own lands adjoining them or can obtain access to them without 
trespass, so far as they do not interfere with the reasonable use of the ponds 
by others, or with the public right, unless in cases where the legislature have 
otherwise directed." — 7 Allen, 171. 

ShaAv, C. J., in Cuinmings et ah, vs. Barrett et ai, 10 Gushing, 188, says : 
" What the rights are of adjacent or riparian owners of land bordering on 
such ponds (great) has, we believe, never been the subject of adjudication or 
discussion." 

The common law right will probably be recognized in the courts, but the 
most important point is to decide what shall constitute trespass with damages 
against parties passing over the lands of riparian owners to reach great ponds 
for the purpose of fishing therein. 

If roads exist, leading to such ponds, actions against such parties for tres- 
pass on riparian lands, when such roads might be used, would probably lie. 

By the Colony Laws, the common law right to fish in rivers, so far as the 
tide ebbs and flows, is sustained. 



1869.] SENATE— No. 3. 65 

Nevertheless, in 1779, in the case of Freary vs. Cooke^ 14 Mass. 488,* an 
attempt was made by riparian owners to assert their right to the fishery ad 
flum aquae, and to get damages from the defendant for fish taken therein. 
In this case the plaintifi* urged a custom as defence, which was not sustained 
by the court, the custom not being estabhshed as valid. Moreover the tenor 
of the decision seems to favor the view that no custom would have availed in 
prejudice of common law rights. 

In Coolidge vs. Williams it was decided that if the legislature makes no dis- 
posal of the fishery rights in navigable rivers, riparian towns may dispose of 
the same, and if such towns do not avail themselves of this privilege, then all 
inhabitants of such towns may take fish in such rivers, provided they do not 
trespass on the rights of others. Private statutes are not to be construed 
against existing rights and privileges. 

The decision of this case extends the privilege, given by the colony law* 
to householders, to all citizens. 

In Commonwealth vs. CJiapin, it was urged on the authority of Pennsylvania 
precedents that the common law doctrine as to navigable rivers did not apply 
to great rivers, such as the Connecticut, and that such rivers were, in the 
technical sense, navigable above the ebb and flow of the tide, and that ripa- 
rian land owners could have no common law rights in such great rivers. 

But it was decided that in this State all rivers are navigable so far as the 
tide ebbs and flows ; that in navigable rivers fishing rights are common. 

But above the ebb and flow the public have right of way, though not a 
right of fishing, for the public have an easement for passing in boats, etc., in 
rivers which, though not classed with navigable rivers, are in fact navigable 
rivers for craft above the ebb and flow of the tide. 

An interesting question here comes up as to the exact definition of the point 
where the tide ceases to ebb and flow. I have examined the cases very care- 
fully with reference to this point, and have been able to find no decision which 
touches upon this matter, and no reference to such a decision. The practical 
state of the case is, that any plaintiflf would have to prove that the tide did 
not ebb and flow in the waters which he should seek to protect, just as in any 
action for trespass, the plaintiff must begin by proving his title. 

As to the doctrine of easements referred to above in Commonwealth vs. 
Chapin, " an uninterrupted adverse use during twenty years " would be neces- 
sary to establish such easement. — Gen. Stat. Ch. 90, 33. 

As to the obligation of dam-owners in respect to fishways in their dams, it 
was decided in Sloughton vs. Baker, 4 Mass. 522, that, although the legislature 
appoint committees to make fishways in certain dams, partly or wholly, at the 
expense of the owners, said owners cannot be charged with the expense of 
such committees ; no prescriptive rights, from charter or otherwise, can preju- 
dice the rights of the public that fishways shall be kept open, and all dams 
are held subject to this restriction. 

The government can enforce compliance with these laws as to dams, though 
the complete prostration of any dam will give the owner a remedy by action 
at law. Finally, such committee may cause the alterations to be made under 

* The river being navigable at this point. 
9 



66 RIVER FISHERIES. [Jan. 

their direction ; but they are not personally answerable for those whom they 
employ ; and as the exercise of their authority is personal, it cannot be dele- 
gated to any other person, or even to one of their own number. 

In this case it was openly attempted to question the right of the Common- 
wealth to oblige dam-owners to put fishways into their dams. The position 
seemed to be a strong one, for the dam in question was held under a charter 
dated in 1633, and the said charter was extended by a grant made in 1634: of 
a several fishery from the said dam to the weir below. 

Accordingly it seems that if this right of the legislature could be shaken in 
any case of prescriptive claim, it could have been so shaken in this. The 
result of the case evidently shows the tenor of judicial decision on this point, 
as well as in the matter of great ponds and estuaries, to have been in favor of 
all common law rights of the public, as against those of all individuals. 

In the case of McFarlin vs. Essex Co.^ 10 Gushing, 304, as to fish z,sferai 
naturce, Shaw, C. J., said that it was the established law of Massachusetts 
that the right to the soil under rivers not navigable is in the riparian owners. If 
the same person owns the land on both sides of any stream, the property in 
the soil is wholly in him, subject to certain duties to the public ; and if dif- 
ferent persons own the land on opposite sides, each is proprietor of the soil 
under the water to the middle or thread of the stream (ad Jilum aquae.) In 
this case, also, it was incidentally decided that no right by prescription could 
be acquired but by adverse use and occupation during twenty years, and 
from the mode of statement adopted by the judge already mentioned, I 
should doubt if such prescriptive rights could ever be acquired. At all events, 
it was stated in a doubtful form. Also decided that, though A should ad- 
versely occupy ten years a fishery against B, said A cannot transfer, by deed 
or otherwise, to C his ten years' prescription, thereby enabling C, by ten 
years' further possession, to claim absolutely under the easement statute. 
From this case, and from Waters vs. Libby, 4 Pickering, 146, 1 conclude that 
fish in rivers are always to be regarded as /erce naturce^ whether the rivers are 
navigable or not ; hence no proprietor, even above the ebb and flow of the 
tide, could obstruct the passage of fish ; all he has a right to do being to pre- 
vent persons, acting without his leave, from fishing on his lands, or opposite 
to them, ad Jilum aquae. 

The two cases of Melvin vs. Whiting^ 10 Pickering, 295, and 13 Pickering, 
184, it was decided that adverse possession and occupation on the part of an 
heir should be counted as part of the twenty years of such possession 
required by statute to establish an easement. 



1869.] SENATE— No. 3. 67 



[D.] 

Brief History of the Movement, on behalf of the State, for 
THE Restoration of Inland Fisheries. 

April, 1865. — On remonstrance of New Hampshire and Vermont against 
the cutting oflf of their migratory iSshes, by high dams on the Merrimack and 
Connecticut Rivers, legislative resolves appoint two Commissioners to investi- 
gate the whole question. 

December, 1865. — These Commissioners, Theodore Lyman and Alfred A. 
Reed, report to Governor and Council. 

May, 1866. — Legislature provides appointment of two Commissioners for 
Jive years to carry out a general plan for opening the Connecticut and Merri- 
mack Rivers, by fishways for shad and salmon over the dams. The said 
Commissioners to work in connection with those of New Hampshire. 

December, 1866. — The Commissioners, Theodore Lyman and Alfred R. 
Field, report the fishways finished on the Merrimack, and that New Hamp- 
shire had opened the upper river. 

June, 1867. — Legislature enlarges poicers of Commissioners, who may 
examine all dams and order fishways therein, and may re-stock ponds, &c. 

December, 1867. — Commissioners report the success of the Merrimack 
fishways, and the beginning of re-stocking our inland waters. They also 
give copious details upon artificial breeding, &c. 

June, 1868. — Legislature makes a special grant of $12,000 to build the 
Holyoke fishway (as a guarantee, in case the company proved not liable.) 

December, 1868. — The Commissioners report the satisfactory progress in 
re-stocking our inland waters, explain the legal difficulties about the Holyoke 
dam, and present the necessity of a general alteration in our fishery laws. 

Note.— Of the $30,000 appropriated since April, 1865, there will be on 
hand January 1, 1869 : — 

Special appropriation for Holyoke, $12,000 00 

Of other appropriations (about,) ..,*., 2,000 00 

$14,000 00 



68 RIVER FISHERIES. [Jan, 



GENERAL INDEX TO SUBJECTS. 



Alewives or Herring, 84, 35, 86, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 51, 62, 54, 55, 56, 58, 

59, 60, 61, 62, 63 

Ancient Charters, 63, 64 

Black Bass, 36, 38 

Corporations for Breeding, etc., . . 35, 41, 42, 43, 45, 46, 47, 51, 53, 55, 57, 61, 62, 63 

Decision on prescriptive rights, 65, 66 

" respecting great ponds and streams, 64, 65 

" " easements, 65, 66 

" " riparian rights, 65 

" " fish as ftrx naiurot^ 66 

*' " dam-owners 65 

Fish for restocking, 34 

Fish Weirs, 38, 48, 49, 50, 53, 56, 58, 59, 63 

General Statutes, 44 

Injurious Drainage, 34,45 

Lease of Fisheries, 36, 38, 41, 42, 43, 44, 45 

Pickerel and Perch, 40, 41, 51, 58, 59 

Ponds protected, . S4, 35, 36, 41, 43, 45, 46, 47, 48, 50, 51, 53, 55, 56, 57, 59, 60, 66 

Propagation, 36 

Putting fish over, 38 

Rivers protected, 34, 35, 38, 40, 41, 46, 47, 49, 52, 55, 56, 58, 61, 62 

Salmon, • 34, 37 

Seine, 39,40,41,45,46,47,50,51,54,56,59 

Shad,. . • 34,35,36,38,41,43,52,54,55 

Smelt, 34 

Sunday Fishing, -39 

'Hde Water, 63,64,65 

Trout, 34, 35, 38, 4d, 42, 45, 58 

Wardens, 42,52,55,57 



1869.] 



SENATE— No. 3. 



69 



INDEX TO STREAMS, TOWNS, &C. 



Acushnet River, 
Agawam River, 
Andrews River, 
Apponigansett River, 
Assonet River, . 
Assawanipscott Pond, 



59 
41, 43, 53, 62 
49 
50 
42 
41 



B. 

Barker's River, 38, 46 

Barlow's Pond, 39 

Barnstable, . . 35, 42, 47, 57, 58 
Barnstable County, 35, 40, 44, 48, 53, 58, 62 

Bass River, 50, 58 

Berkley, 41, 52 

Beverly, 50 

Boxford, 46 

Bowman's Pond, .... 50 

Brewster, 48 

Bristol, 53 

Broad Creek, 49 

Buzzard's Bay, 41, 47 

c. 

Cambridge, 42 

Cape Poge, 46, 60 

Carver, 35 

Carver's Grist aiill, .... 51 
Chappaquonsett, .... 60 

Charlestown, 40, 42 

Charles Neck Point, ... 4] 

Chatham, 47, 48 

Chilmark, 50, 58 

Clam Point, 50 

Clark's Pond, 51 

Cohasset, 53 

Connecticut, S7 

Connecticut River, . . 34, 87, 38, 39 

Cook's Brook, 59 

Coonamiset Pond, .... 

Coy's Brook, 51 

Crane River, 50 

Crooked Channel, . . .49 



D. 



Dam Pond, 




. . . 52 


Danvers, . 




. . . 50 


Dennis, 




. . 48,53,58 


Dartmouth, 




. . . 50 


Dexter River, . 




61 


Dighton, . 




. . . 41, 52 


Dukes County, . 




. 45, 47, 50, 51 


Duxbury, . 


E. 


. 45,46,60 


Eastham, . 




. . . 59 


East Head, 




35 


Edgartown, 




46, 48, 51, 56, 60 


Eel River, . 




38 


Enfield Dam, 




38 


Essex, 


F. 


37, 40, 46, 48, 50 


Falmouth, . 




41,45,51,57,61 


Fairhaven, 


. 


59 


Fall River, 




. 41, 52 


Farm Pond Fishing Co., 


47 


Flax Pond, 


. 


51 


Flax Pond Co., 




. 53 


Franklin County, 


. 


. . 35 


Freetown, . 


G. 


41,42,43,52 


Gammon Point, 




47 


Gosnold, . 




35 


Gravel Island, . 




57 


Great Marsh Co., 




57 


Great Xeck Point, 




41 


Great Pond, 




. 56, 61 


Grist Mill Pond, 


H. 


. 34 


Half- Way Pond, 




41, 43, 53, 62 


Hall's Island, . 


. 


. 51 


Hamilton, . 




46 


Hammond River, 


. 


. . 39 



70 



RIVER FISHERIES. 



[Jan. 



Hanover, . 

Hanson, . 

Harwich, . 

Herring River and Pond, 

Hogg Island Harbor, 

Holyoke Dam, . 

Horse Pasture Point, 



Indian Head Riv 
Indian Ponds, 
Indian Point, 
Ipswich, . 
Ipswich River, 
Island Marsh, 



•44, 

.49, 

51, 52, 

.35, 



K. 



Kilt Pond Point, 
King's Bridge, . 
Kingston, . 



. 46, 50 
34, 50, 61 



Lagoon Pond 
Lakeville, . 
Lawrence, . 
Lewis Bay, 
Little Bay, 
Little Pond, 
Little River, 
Little Quitticus Pond 
Little Sipwisset Co., 
Long Pond, 
Long Point, 
Lowell, 



M. 



Maddeket Harbor, 
Marion, 
Marshfield, 
Marshpee District, 
Marshpee River, 
Magousett, 
Mattapoisett, 
Mattapoisett Harbor, 
Medford, . 
Merrill Pond, . 
Middleborough, 
Merrimack River, 
Middleton, 
Miller's Bridge, 
Monatiquot River, 
Monomoy, 
Mystic River, . 
Muskeekit, 



40, 



45 
41,52 
37, 40, 48 
50 
49 
50 
61 
41 
41 
43 
45,53 
40 



62 

41 
51,52 
44,45,47,58 
42 
42 
41,56 
39,41 
39,42 
35 
41,52 
, 39, 40 
46 
53 
62 
49 

34, 35, 40, 42 
57 



35 



16, 37 



N. 

Nauset River, . 

Nantucket, 

New Hampshire, 

New Bedford, . 

Nine Mile Pond Fishing Co. 

Nobsque Point, 

North River, 

Newraasket River, . 



o. 



Orleans, . 
Osterville Harbor, 
Oyster Pond, 



48 

51,57 

37,39 

59 

43 

45 

53,59 

41.52 



47,49,53 
. 48, 51 



P. 



Pasque Island, . 
Pembroke, 
Pleasant Bay, . 
Plymouth, 
Plymouth County, 
Pocha Pond, 
Poppenesset Bay, 
Porter's River, . 



Quashnet River, 
Quawker's River, 



Q. 



35 

38,44,46,52,58 

47 

35,38,41,43,45 

34, 35, 39, 53 

. 46, 57, 60 

42 

50 



R. 

Raynham, 41, 52 

Rehoboth, 55 

Rochester 39, 41, 56 

Rock Harbor Fishing Co., . . 63 
Rocky Point, 52 



Sanchachautacket, 
Sandwich, . 
Scituate, . 
Scorton Creek, . 
Scusset River, . 
Sesuit Creek, . 
Smith's Island, . 
Somerset, . 
Somerville, 
South Harwich, 
Squipnocket Pond, 
Squawbetty Village, 
Skinnaquito Co., 
Stewart's Hole, 
Stony Brook, . 



52 



62 

46,52 

53,55 

35 

52 

55 

57 

41,52 

35 

49 

50 

41,52 

62 

49 

48 



1869.] 



Strawberry Point, .... 41 
Succanesset Point, .... 47 
Swanzey, ^^ 

T. 

Taunton, 38, 52 

Taunton Great River, . 34,38,41,52 

Tisbury, 60 

Topsfield, 46 

Town Brook, 38 

Trap's Creek Fishing Co., . . 51, 59 

Tuckernuck Island, . . ' . . 57 



V. 



Vermont, . 
Vineyard Sound, 



40 
45, 00, 61 



-No. 3. 






71 




w. 




Waquoit Harbor, 




. 45, 57 


Wareham, . 


. 34, 41, 43, 46 


Waters' Ptiver, . 


. 


50 


Wellfleet, . 






39 


Wendell, . 






35 


Wenham, . 






46 


Wenham Pond, 






34 


Wequabsqua Fish 


ng Co., 




57 


West Cambridge, 






35,39 


West Sandwich, 






52 


Whitman's Pond, 






61 




Y. 




Yarmouth, 


. 


58 


, 59, 61 



SENATE ..„..No. 12. 



REPORT 



COMMISSIONERS OF FISHERIES, 



FOR THE YEAR ENDING 



JANUARY 1, 1870. 



BOSTON: 

WRIGHT & POTTER, STATE PRINTERS 
79 Milk Street, (Corner of Federal.) 
1870. 



€ommontocaltl) of itta00acl)U0Ctt0. 



REPORT. 



The Commissioners on Inland Fisheries, under chapter 384 
of the Acts of 1869, beg leave, respectfully, to present their 
Fourth Annual Report. 

FiSHWAYS. 

(1.) At Holyoke. — This matter, which has caused so much 
trouble, seems in a fair way for settlement. 

The last legislature, at the suggestion of both the Holyoke 
Water Power Company and the Commissioners, passed a bill 
(chap. 422, 1869), by which the case could be promptly placed 
before the supreme court, to decide whether the State, or the 
company, ought to pay for the fishway. 

Meantime, the company's engineer has begun the structure, 
in connection with the general repairs of the dam, and it is 
now so far advanced that it may readily be finished in a short 
time. The 112,000 voted by the legislature in 1868 (Gen. Res. 
chap. 53), has never been used. Should the decision of the 
supreme court be adverse to the Commonwealth, this money 
will be drawn ; and an additional appropriation will probably 
be needed, because the problem at this dam has proved much 
more difficult than at Lawrence. 

(2.) At Lawrence. — With the improvements of last year 
has come an increased run of fish. Alewives in large num- 
bers and some shad were seen on their way up, and doubtless 
surmounted the dam, and one grilse salmon was taken near 



4 RIVER FISHERIES. [Jan. 

Manchester by a fisherman in pursuit of trout. Nevertheless, 
the top-hamper of this fishway has always been defective in prin- 
ciple, and the Commissioners have been led to experiment on 
the best way of producing a gentle stream of water down an 
inclined plane. The first question for solution is, what kind of 
stream is most attractive to fish and most easily surmountable. 
The old idea was, that fishes need still pools to rest in during 
their passage over a high fall ; and, provided these were fur- 
nished, very little attention was paid to the runs or the steps 
that separated these pools. This idea proves by no means a 
correct one. The secret of a fishway is : (1.) that the fish 
should be attracted to enter ; (2.) that, once in, they should 
neitlier wish nor, so to speak, be able to turn back. Therefore 
it is not entirely a question of easy passage, because fishes will 
often refuse such. 

At the Mystic Water Company's dam, in West Medford, was 
a step-fishway, consisting of a number of deep boxes, each com- 
municating with that above by a little fall. Nothing could be 
easier than this ascent. The alewives swarmed in thousands at 
the foot of the dam. A few would jump the first and second, 
or even the third fall. Beyond this not one would go ; nay, 
they would turn about and come down again. The inhabitants 
of the towns above were quite desperate at this perversity, 
while tlie company maintained, not without a good show of 
reason, that all had been done that was possible. The fishway 
was as easy as possible, there was a grating to direct the ale- 
wives, and still they refused it. In this dilemma, the Com- 
missioners ordered a small trough put up, as an experiment. 
It was a foot wide, eight inches deep, and arranged with little 
cross-bulkheads, on Foster's plan. One end was secured on 
the crest of the dam and the other fixed in the water at its 
foot. While the carpenter stooped to arrange the trough the 
alewives rushed up in it, in hundreds, between his legs ! The 
reason of this success was, that the stream was an almost simple 
spiral ribbon of water, without whirls or still places ; therefore 
the fish were opposed by that uniform current which stimulates 
them to press onward and deters them from turning back ; for, 
it is to be observed of migratory fishes, especially, that they 
seldom turn tail to a strong current, but will stem it, if pos- 
sible, and, if not, will back down into still water. Where 



1870.] SENATE— No. 12. 5 

there are still pools they seem to grow suspicious ; and strong 
eddies are liable to confuse them. This latter fault is to be 
found in fish ways that are^oo wide. The bulk of water finds 
room to make violent whirls as it strikes the cross-bulkheads. 
Moreover, as its momentum depends not only on its velocity, 
but also on its mass, an increase of width adds to the difficulty 
of moderating the flow of the water, which is increased in mass, 
while it encounters relatively less friction from the sides. 
These faults have been so apparent at Lawrence that it has 
been decided to lessen the width of the way at least one-half, 
while the length will be increased by making a zig-zag course. 

On Ipswich River. — The fishways were opened for the first 
time this year, and some alewives are reported to have run up 
as far as Middleton. 

On the Weweantit River. — This stream, which heads at 
Sampson's Pond, in Carver, was formerly noted, like most of 
its neighbors, for an abundance of alewives. At the request 
of the inhabitants of Wareham, the river was this year opened 
by fishways, which will be so improved by next spring as to 
give a good passage to the fish. 

Fish Culture. 
(1.) Of the Alewife (^Alosa tyrannus). — It has been stated 
(Report for 1867, p. 40 ; 1868, p. 7), that of the yearling shad 
and alewives only the males run into fresh water. Tliis year 
a very puzzling discovery was made in Mystic Pond. Shoals 
of small fishes, not distinguishable specifically from the larger 
alewives, were seen below the dam, and, of them, many were 
females full of spawn, yet not larger than what are known as 
yearlings. There were two runs of them, corresponding to the 
"Gray backs'' and the "Black bellies." Their length was 
four or five inches, and, altogether, they were plainly the same 
as those sold in the market under the name of " sprats." The 
two unusual circumstances were their abundance and the 
presence of mature females. A corroboratory fact was the dis- 
covery in the artificial reservoir of the Charlcstown Water 
Works of exactly similar mature female fish, the age of which 
was known. This reservoir had been emptied and cleaned 
some time before, and no water came into it except that 
pumped by a steam-engine from Mystic Pond. The embryos 



6 RIVER FISHERIES. [Jan. 

of alewives were thus introduced, and their age could not ante- 
date the emptying of the reservoir above referred to. A female 
there caught was full of spawn, and in other respects was en- 
tirely like those taken at the dam. The age of this fish could 
not exceed twenty, nor be less than eight months, which would 
correspond very well to our previous ideas about individuals of 
that size. All this is very clear so far as concerns Mystic 
River, but does not correspond to what is elsewhere observed. 
Usually, the number of yearlings is not very great, and, as far 
as heretofore examined, they all are males ; moreover, they 
do not run into fresh streams at all, unless in the wake of 
shoals of adult fish. This last habit may be exemplified by 
the artificial restocking of a stream. Mr. E. S. Hadaway 
and others hired the fisheries of Eel River and Town Brook, 
in Plymouth, under a State Act (chap. 58, 1865). In the 
spring of 1865 they carried up about a thousand alewives for 
each stream, and placed them near the head-waters, where 
they spawned. Their return to the sea was so cut off' by 
dams, that few or none would be likely to survive the descent ; 
and it was part of the plan of Mr. Hadaway annually to carry 
up a proper number of breeders, and to gather his harvest 
of their descendants near the mouth of the river, trusting 
to the safe descent of a sufficient number of the young' fry 
through the wasteways, or even through the mill-wheels. 
Now, had these fry conducted themselves after the fashion 
of those of the Mystic River, they would have reappeared 
in the spring of 1866, the females filled with spawn. Not so. 
In the springs of 1866 and 1867 a few alewives, small and 
large, were seen ; in 1868, several schools of mixed sizes ; but 
the 'present spring (1869) came, for the first time, a good run 
of large fish, — most of them males, fully grown, — pushing up 
in the usual manner of this species. In other words, they 
made no considerable attempt to return to their breeding 
grounds until they were four years old. All of which cor- 
responds with the observations of Mr. Treat, near Eastport, 
Me., and with the evidence deduced from the barring out of 
alewives by impassable dams (see Report for 1868, p. 8). It 
should be added that Mr. Hadaway's experiment has succeeded, 
thus far, only in Eel River ; few fish have showed themselves 
in Town Brook — a failure that, perhaps, may be accounted for 



1870.] SENATE— No. 12. 7 

by the quantity of sawdust and other deleterious matter dis- 
charged into it. 

The breeders were carried in a tank three feet long, two feet 
wide, and a foot deep, mounted with a strong spring on a pair 
of wheels. On top the tank is a spout six inches high, fitted 
with a tight cover ; and at the hind end a little door opening 
inwards. The breeders are introduced through the spout, and 
the tank having been filled as full as possible with water, the 
cover is fastened on, and the machine is drawn by a horse to 
the pond, where it is backed into the water, the hind door 
opened, and the fish allowed to pass out. In this way a hundred 
at a time have been conveyed seven miles. The success of this 
contrivance seems to depend on the fulness of the vessel, where- 
by the " swash " is avoided, which not only knocks off the scales, 
but probably stifles the fish by violent and irregular currents 
through their gills. The best temperature for the water is that 
of a cold spring ; ice is apt to lower it too much. 

(2.) Of the Shad (^Alosa prwstahilis,') — No regular ar- 
rangements were this year made for artificial propagation on the 
Connecticut River ; but the Messrs. Smith, of South Hadley 
Falls, voluntarily undertook it, and report that they hatched 
a large quantity during the season . They took the first ripe 
spawn on the sixth of June, and five days were required to 
hatch it. On the fifteenth of June they had sixteen boxes in 
use, but so many chips and shavings came down from the re- 
pairs on the dam, that they desisted from their experiments. 

On the Merrimack the experiments were conducted by the 
State at two different points, by Mr. A. C. Hardy at Marston's 
Ferry, and by Mr. J. M. Gage at his fishery, two and a half miles 
below. 

The number of ova taken was estimated as follows : — 

At Gage's 2,595,000 

Hardy's, 2,160,000 



Total, 4,755,000 

Of these, 2,105,000 were distributed as follows — 

To Ipswich River, 100,000 



RI7ER FISHERIES. [Jan. 



To Concord River, . 


180,000 


Weweantit *' . 


100,000 


Eel "... 


100,000 


Nemasket " . 


100,000 


Mystic " . 


. 1,125,000 


Winnipiseogee Lake, 


400,000 



2,105,000 

The balance, 2,650,000, were turned into the Merrimack it- 
self. Of those distributed, four-fifths are thought to have 
hatched ; and three-fourths of those turned into their native 
river, including several batches which failed entirely. At 
Gage's fishery a new and highly successful experiment was 
tried. Hitherto it had been the custom to haul the seine and 
examine each fish that was caught, trusting to fortune to find 
ripe breeders. The waste and uncertainty of this process are 
obvious. To obviate the trouble, a pool was constructed, by 
damming a rivulet close to the river. As the fish were brought 
in, the unripe ones were carefully transferred to this pool, 
where they could be examined day by day, till the spawn was 
mature. Instead of dying immediately, or running themselves 
on shore in their fright, (as had been expected,) the shad thus 
" pounded " seemed almost as tame as domestic animals. They 
sailed leisurely back and forth in the pool, and paid little at- 
tention to bystanders. Some were taken out of the water and 
examined at least half a dozen times with no bad result other 
than a considerable growth of conferva on those parts of the 
body injured by handling. By the aid of this pool very good 
observations could be made on the conditions most favorable 
for artificial impregnation. It was found that if the spawn 
were in the least coherent or lumpy it was sure to fail ; and only 
when it flowed in a rapid easy stream was the impregnation 
certain. The milt of the male, also, was variable. If clotted, 
or even thick, it was useless, and it was efiicient only when it 
had attained the appearance and consistency of rich milk. It 
appeared also that the sexual maturity was not equally affected 
by the same conditions. The temperature of the pool became, 
as the season advanced, lower than that of the river ; and 
this difference more or less checked the development of the 



1870.] SENATE— No. 12. 9 

seminal fluid ; but did not avail to prevent the due ripening of 
the ova. It would doubtless be better to make a small in- 
closure in the river itself and divide it in two or three parts, 
wherein the breeders of different degrees of maturity could be 
kept separate, and where the temperature of the water would 
be natural. No difficulty was found in moving the fish two or 
three miles up or down the river, by placing them in a slatted, 
floating car, which was towed after a boat. The following 
tables will show the daily details of these fisheries, the times of 
drawing the seine and number of shad taken ; the temperature 
of air and water; the proportion of males to females; and the 
amount of spawn taken : — * 

* The seines used were about 300 feet long and six deep ; with a mesh of four and a 
half inches. ♦ 



10 



X 

u 



RIVER FISHERIES. [Jan. 

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SENATE— No. 12. 



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1870.] SENATE— No. 12. 17 

The great number of males compared with females is a 
curious circumstance, observed also among ale wives, and 
among trout and land-locked salmon. At Hardy's, some schools 
consisted almost wholly of males, and the proportion for the 
whole season was large. At Gage's, females were more numer- 
ous, but, even there, they often seemed not more than one- 
third of the whole number ; and, what is singular, there was taken 
at that place, only one ripe female during the season, whereas 
they were common two and a half miles above. This looks as 
if the spawn matured somewhat suddenly, and then the fish 
ran immediately to their beds, just as trout work into gravel at 
a similar season. Precisely analogous facts have been observed 
on the Connecticut, where no ripe females could be taken at 
Springfield, although they were abundant a few miles above, at 
Hadley Falls (see Report for 1868, p. 10). The manner of 
spawning among shad and alewives has been determined by 
direct observation. Gathered in close schools, the males and 
females circle slowly about, often with the dorsal fin out of 
water ; suddenly, as by an electric shock, they make a dart, and 
immediately clouds of spawn and milt are shot into the water. 
Where there is only a single pair of shad, they swim slowly in 
curves, the male keeping his head close to the pectoral fin of 
the female. 

In former reports, the efiects of temperature on ova have 
been considered, and it was proved, that, when the water rose 
above 82°, the embryo was destroyed ; the experiments of the 
present season have showed further, that its existence is limited 
to 61°, as the lowest; its life is, therefore, included within 
about 18° ; though 14° would perhaps be more accurate. The 
salmonidae have a greater elasticity and hardihood, and their 
embryonic development will go on within a range of at least 
25°. And, if we say that the hardihood of the salmonoid em- 
bryo is to that of the clupeoid, as 25 to 14, we also express 
pretty nearly the relations of the adult fishes in power of en- 
during cold and heat. 

In taking the averages of these tables, we find, as to the 
wliole number taken and the proportion of males to females as 
follows : — 

June 10-26 = 16 days. Whole no. taken, 1,207. Males to femares, 5 : 2. 
June 26, July 28 = 32 days. " " " 465. " " " 3 : 2. 
3 « 



18 RIVER FISHERIES. [Jan. 

In other words, five times as many fish can be taken daily 
during the last two-thirds of June as during July. But the 
proportion of female fish is greater in July. For the males to 
come on the breeding grounds before the females seems a 
general habit among fishes. It has been observed, at any rate, 
among the salmons, smelts, and codfish. The whole number of 
shad mentioned in the table is larger than the total as given 
by Mr. Hardy, because he did not reckon a large number of 
males returned to the river, alive. 

The mean temperature of air and water will be found as 
follows, during the hottest part of the day: — 

June, — Air 71°. Water 66°. 

July, (11 days.) .... " 65^ " Qo"". 

In June the water averaged 5° cooler than the air. In the 
first third of July came an unusually cool period, which re- 
duced the air 6°, but the water only 1°. ^ 

The details in the tables, of the number of fish taken show that 
no increase of large fish has as yet taken place, in spite of two 
years of prohibition in the Merrimack. This is exactly what 
ought to be expected from what we really know of the growth of 
shad, to wit, that they must be three, four, or even five years old, 
before they are large enough to be stopped by the 4-|- inch mesh 
of our seines. Were they full grown at a year old the present 
season should have shown a great increase. On the other hand, 
if the four-year theory is correct, we must look for an increase 
in 1871 at the earliest and in 1873 at the latest. Should there 
be no marked increase then^ we must admit, either that both 
theories of growth are wrong, or that the prohibition of seining 
and the introduction of artificial propagation do not really help 
the fecundity of a river. 

The shad fishery of the Connecticut has been this season 
somewhat puzzling in its results ; for, whereas the pound fish- 
ery, just outside the mouth of the river, has been good, and 
about as productive as last year, the seining and gill-netting 
within the mouth have been very poor, and even worse than last 
year ; while on the vpper part of the stream within Massachu- 
setts, the take has been often double that of last season. So 
that, beginning outside the river mouth, and going to Hadley 
Falls, the fishery would read : ^ood ; very bad ; very good. 



1870.] SENATE— No. 12. 19 

Now, whatever may be herein obscure, one thing, at any rate, 
is clear; namely, the unequal way in which the migratory fish 
of this river fall into the nets at different points: because, 
throwing the pounds out of consideration, we find that the first 
nets are not, so to speak, first served ; on the contrary, they get 
very little, while the upper nets get more than usual. And 
this falling off of the lower nets is not peculiar to this year or 
the last, but has been a growing trouble for some time. (See 
tables on page 20.) 

To account for such a state of things there are many 
hypotheses ; and it will illustrate the topic to mention one 
or two. It may be that the schools of shad which intend to 
push far up, strike straight at the mouth and come (as 
they say of menhaden) " sunk," that is to say, swimming deep, 
so that they pass below the nets. This supposition gets some 
color from the fact, that even at Hadley Falls, hundreds of fish 
are taken as bright and hard as if immediately from salt water. 
Again, it may be that the schools which only frequent the 
estuary or lower river (just like " river alewives ") strike the 
shore outside, and west of, the mouth, and, as they loiter along, 
fall into the numerous pounds. Mr. Rankin went so far as to 
think, that the fish, confused by these barriers, spawned in the 
brackish, tidal water, and no more entered the estuary for that 
purpose, as had been their wont. 

As to the yield for the last two seasons, three pounds in West- 
brook averaged in 1868, 10,956 shad ; only one pound was re- 
turned for 1869 ; that one was in Old Saybrook, and took 
15,503 merchantable shad. Two " pier seines " near the mouth 
of the river made returns, as follows : — 

Mr. K.'s seine, 
Mr. C.'s seine. 

Within the Massachusetts line, the two years compare as 
follows : — 



Agawam, 
Longmeadow, 
Springfield, 
Hadley Falls, 



1868. 


1869. 


1,970 


1,796 


3,581 


2,018 



1868. 


1869. 


946 


2,163 


992 


1,876 


3,865 


6,651 


7,341 


8,807 



20 



RIYER FISHERIES. 



[Jan. 



By the kindness of Mr. 0. H. Kirtland, of Old Saybrook, we 
have received returns, for forty-one years^ from a pier-seine, 
near the mouth of the Connecticut, and the figures are given 
in the table below : — 

Shad caught hy seine, at Parsonage Pier, annually si?ice 1827. 



1827, 
1828, 
1829, 
1830, 
1831, 
1832, 
1833, 
1834, 
1835, 
1836, 

1837, 

1838, 

1839, 

1840, 

1841, 

1842, 

1843, (water low,) 

1844, 

1845, 

1846, 

1847, (1848 wanting,) 

1849, 

1850, (water high,) 

1851, 

1852, 

1853, 

1854, 

1855, 

1856, 

1857, 

1858, 

1859, 

1860, (water low,) 

1861, 

1862,. 

1863, 

1864, 

1865, 

1866, (water low,) 

1867, 

1868, 

1869, 



Average for first ten 
years, 10,376. 



3,091-) 

10,716 

7,138 

3,917 

9,064 

11,813 

8,670 

14,934 

23,376 

11,050J 

9,096^ 

8,734 

9,029 

7,236 

8,727 

7,230 

3,415 

11,038 

16,019 

12,798 J 



13,690 

20'401 I ^^^^^2® ^^^ fi^® 
c)-''c).')7 [ vears, after closinsT 
14'o57 ' *^^ Holvoke 



Average for second 



ten years, 9,332. 



dam, 



19,490. 



Average for next ten 
years, 8,364. 



18,158J 

10,148 
8,236 

13,940 
8,826 
9,826 ' 
7,846 I 
2,045 

10,654 
6,449 
5,675 1 



5,491^ 

o\rJ^ I Average for last six 

^'^^^ ' vears 4 48-'> 
1,970 I ^®^"' ^'^"■" 

1,798 J 



1870.] SENATE— No. 12. 21 

The average, natural yield of this fishery seems to have 
been about 10,000 shad annually, which is the number the 
first ten years. The second ten years show a decrease of ten 
per cent., owing, perhaps, to the increased fishing in the neigh- 
borhood. This brings us to the closing of the Holyoke dam, 
whereupon we have, for five years, a surprising annual catch of 
nearly double the average of the first ten years ; but, after this, 
the catch suddenly falls off. Now, it is to be remembered, that 
our theory gives three years for a shad to become a merchant- 
able fish, and about five years to attain its maximum growth. 
What then were the generations of fish belonging in the river 
when that dam was closed ? There were the full-grown fish 
(some of which had bred in the extensive grounds above the 
dam) and there were four successive crops of younger fish, the 
smallest of which would not get their full size for four years. 
In 1849, the schools, pushing for the upper waters, were stop- 
ped by the dam, and, returning down the river in confusion, 
were taken in great numbers at all points. The alewives of the 
Merrimack did the same when the Lawrence dam was closed. 
This would last so long as the columns were recruited by the 
younger fish, namely, for about five seasons in all ; and so ex- 
actly it happened. The average for the ten years succeeding 
this period of five years is only 8,364, or eleven per cent, less 
than the corresponding period immediately before the five 
years. Finally, the last six years show a decline of nearly fifty 
per cent, compared with the ten years preceding. Considering 
the better results to be found on the upper part of the river, 
we incline to attribute the late falling off in the estuary fish- 
eries chiefly to the increase in the number and extent of the 
pounds.* 

To obviate this difficulty, the Connecticut Assembly, in 1868, 
passed a law (Report for 1868, p. 31), limiting the mesh of 
pounds to five inches, and directing them to be kept open from 
sunset of Saturday to sunrise of Monday. OF course, this was 
a loss to the pound-men, who therjefore petitioned the last 
Assembly to repeal the Act. The Committee on Fisheries 



* Additional information has enabled us better to discuss the state of these fisheries. 
The same general indications were given last year, though from inferior material. The 
table on p. 12, Rep. for 1868, gives an average for fish taken, for the first three years, of 
9,841; for the next ten years, of 6,702; and for the last five, of 4,713. 



99 



RIVER FISHERIES. 



[Jan, 



appointed the 26th of last May to examine some of the pounds, 
and met the Connecticut Commissioners, and one of those from 
Massachusetts, at Westbrook. One pound had been set with a 
two-and-a-half inch mesh, in order to show if many half-grown 
shad were thus captured. The yield of the haul was estimated 
at 6,000 or 7,000 fish, and showed a proportion among the dif- 
ferent species quite unlike that observed in the pound examined 
near the Saybrook lighthouse the previous season (Report for 
1868, p. 14). 

The following table will show the difference : — 



Large Shad 



Small Shad. 



Hickory 
Shad. 



Alewives. 



Saybrook pound, May 20, 1868, 
Westbrook pound, May 25, 1869, 



Many. 
Many. 



Very many. 
Few. 



Few. 
Few. 



None. 
Many 



Herring. 



Menhaden. 



Tautofr, Weak- 
fish, Rays, &c. 



Saybrook pound, May 20, 1868, 
Westbrook pound. May 25, 1869, 




Few. 
Few. 



Hence, it appears tliat, whereas the Saybrook pound yielded 
a great quantity of small shad and sea-herring ( Clvpea elongata) 
and no alewives at all, the Westbrook took abundance of men- 
haden and alewives, but no sea-herring, and only a few small 
shad. Whether these differences are owing to the place, or to 
the season, cannot be told without thorough returns of fish 
taken from all that part of the coast. In the present state of 
our knowledge, we must modify the conclusions of last year, 
so far as to say that pounds sometimes do, and sometimes do 
not, take large quantities of immature shad.* 



* We hasten to correct a geographical error in the last report, caused by an imperfect 
map. It was there said that there were twenty-six pounds between Saybrook Light and 
Corntield Point, a distance of five miles. The point was Mononnesuc, and the distance 
nearl}' ten miles. This correction is particularly made in reference to the testimony of 
the tishermen, which was there called in question. The general fact of the great number 
of pounds, within this short space, still remains; and it should be added that some stretch 
over a mile into the Sound; and are double^ that is to say, they have one "bowl " at the 
very end of the leader, and one about half way out. And we repeat, that some of the 



1870.] SENATE— No. 12. 23 

The damage they are responsible for is twofold : first, when 
the mesh is too small, they destroy many immature fisli ; and, 
secondly, by their length, position and number they act as so 
many fences to shut out the schools of shad from the mouth of 
the river, where they naturally would go to spawn. The Con- 
necticut Act is, therefore, an excellent one, and, as it turns out, 
is much more beneficial to the estuary of the river than to the 
upper waters within Massachusetts. It was a real pleasure to 
witness the hauling of a five-inch-mesh pound, and to see three 
or four hundred magnificent fish taken out, without admixture 
of inferior ones. Some of these pounds took over seven hun- 
dred great shad, in a day, during this season ; and four hun- 
dred was quite common. 

By chapter 984 of Acts of 1869, the taking of shad is limited 
to the interval between March 1 and June 15, under a penalty 
of five dollars for each fish. Moreover, during the spring and 
summer, no net can be used on our chief rivers, or their tribu- 
taries, having a mesh of less than five inches (see Appendix). 

(3.) Of the Smelt (^Osmerus viridescens'). — As people have 
been inclined to wonder at the fresh-water smelts of Jamaica 
Pond, the experiment was last spring repeated, by putting a 
number of mature specimens in Flax Pond, in Wareham, a 
water already noted as the first that received the black bass, 
in 1850. This autumn, great shoals of little smelts have been 
seen about the edge of the pond, showing the success of the 
attempt up to the present time. The law of the last session 
(chapter 384, § 31) protects this species from nets, between 
the fifteenth day of March and the first of June, under the 
penalty of twenty-five cents for each fish. Such protection is 
enough to insure its increase. It looks as if the law of 1868 
had already increased the smelts, for there was a good run of 
them, this autumn, into Back Bay, and quite out to Brookline. 
The mill-dam was lined with patient anglers ; and distinguished 



testimony given by the pound-men, in 1867, as to the sorts of fish taken and the general 
effect of pounds, was of a kind to mislead. This is not extraordinary, when we reflect 
that they had a good deal of mone}' there invested, and that the}' were hard-working 
men who thought they were entitled to all fish they could catch. Moreover, many of 
them cannot distinguish certain fishes apart, although they think they can. Thus, one of 
the most intelligent among them deliberately confounded an alewife Avith a sea-herring. 
They also are positive that shad get their full size in one year (some remaining small, 
others getting hlg ! ), but have not a single fact to bring forward to confirm the theory. 



Air 50°. 


Water 34°. 


u 4^0^ 


" 32°. 


" 50°. 


" 32°. 



^ RIVER FISHERIES. [Jan. 

merchants, of lower Beacon Street, might be seen, at early 
hours, eagerly catching their breakfast from their back doors. 

The Commissioners endeavored to get the spawn of the so- 
called " Belgrade smelt," which is a purely fresh-water species, 
and which often attains the great length of nine or ten inches. 
Mr. John Shields was sent to Sidney, Me., in the middle of 
April, and he, in company of Mr. Atkins, worked hard to get 
spawn. A quantity was brought back, some artificially, and 
some naturally, fertilized ; but all of it died — an unhappy 
result, to be attributed, probably, to a sudden warm spell at 
that time. Mr. Atkins succeeded in hatching a few in Maine. 
This singular fish breeds in intensely cold brooks, as the follow- 
ing figures will show : — 

April 15th, 
" 16th, . 
" 17th, . 

The ova, as in the common smelt, are furnished with a 
viscid coat, which glues them, in masses, to stones and twigs. 
Where a single egg is thus attached it is seen to be fastened by 
a sort of pedicle. 

(4.) Of the Salmon (^Salmo Salar^. — Of the young hatched 
in the winter of 1867 and 1868, at Meredith, N. H., 4,000 or 
5,000 were turned out last May in an affluent of the upper 
Pemigewasset. These were the property of the New Hamp- 
shire Commissioners. 

In the late autumn of last year (1868), about 100,000 sal- 
mon ova were sent by Mr. Stone, from his establishment on the 
Miramichi, to Messrs. Robinson & Hoyt, at Meredith, for the 
joint account of Massachusetts and New Hampshire. Of these 
eggs, rather less than one-half (about 46,000) were impreg- 
nated, and this seems about as good a result as can be obtained 
at such a distance and in the face of difficulties. Of the fry, 
a certain number died before the absorption of the yolk-sac — a 
period of hazard to all embryos which have been exposed to 
injury from handling, packing, or transportation. They began 
to feed in April, and did well till about the middle of June, at 
which time a severe mortality attacked them and destroyed a 
large number. This was a sort of consumption. The little 
things would not, or could not, feed ; grew emaciated, so that 



1870.] SENATE— No. 12. 25 

the head seemed disproportionately large, and, at last, swam round 
on the surface of the water, often on their sides, and so died. 
A similar disease afflicted the trout at the State hatching-house, 
in May. Mr. Ainsworth thinks that ova artificially fecundated 
do not produce so healthy fry as those by the natural process, 
and doubtless this is true ; but the theory does not account for 
this particular complaint, because young salmon, also from the 
Miramichi, have remained very healthy, at the State hatching- 
house, ever since the absorption of the yolk-sac. The unex- 
ampled freshet of October was another cause of loss, by the 
sudden washing out of some of the little fish, though it is 
likely that a portion of them thus lost passed down into Lake 
Winnepiseogee, whence they easily can go to the sea. The 
number now in the rearing-boxes is estimated at 15,000 ; that 
is to say, about one in six of the eggs received, or about one in 
three of those impregnated. With all the difficulties of dis- 
tant transportation, and of want of knowledge, this is better 
than the estimated result of natural breeding given by English 
writers. 

At the State hatching-house, the young salmon proved more 
hardy after the absorption of the yolk-sac than any of the 
other trouts. Between 7,000 and 8,000 eggs were received 
from Mr. Stone between November 30 and January 12, and 
were put in the troughs. These were constructed in the usual 
way (see Report for 1867, p. 29), except that the sides were of 
thin slate slabs, and the bottom of white glazed tiles, whose 
surface was divided into diamonds by little ridges. Such tiles 
answer admirably, but their cost is a great objection. The 
little frames with net bottoms, contrived by Mr. Brackett, are 
still in use, and are excellent* (Report for 1868, p. 18). If a 
very cheap trough be wanted, the best material is charred 
boards, which have been successfully used by Rev. Livingston 
Stone. One thing is certain, as a general principle, and that is, 
all gravel, stones, or other material on the bottom of the trough, 
are merely dirt-catchers, and do no good at all. If there is cur- 
rent enough to move the eggs on a smooth surface, there is loo 
much. 



* It would seem that not only these frames, but also Ainsworth's spawning -bed, were 
originally used by the French. 



26 



RIVER FISHERIES. 



[Jan. 



The little cross-dams between the tiles were made of com- 
mon thick window-glass. The supply of water, a vital point, 
is excellent. It is a spring brook, which heaxls about tliree 
hundred yards above the house, and receives numerous little 
springs on its course, which is well sheltered by ferns and 
brush. It discharges about 825 gallons a minute, or nearly 
1,200,000 a day. A portion is allowed to flow under the floor 
of the house, which affords a convenient tank for the large fish, 
and renders the house much warmer in winter. During the 
past year, the temperature of the water, and of the air, inside 
and outside the house, has been taken daily. These observa- 
tions are not remarkably accurate, but sufficiently so for general 
purposes. They were made with a common thermometer, usually 
at about nine A. M. A few days will be found wanting, but 
not enough to affect the general result. The following tables 
show the figures for each day : — 







Am. 






AlK. 






Air. 




^ 








2 








1 








i 


In. 


Out. 






In. 


Out. 




i 


In. 


Out 


1868. 








1868. 








1869. 








Dec. 1, 


47 


40 


_ 


Dec. 28, 


46 


36 


32 


Jan. 21, 


44 


34 


24 


2 


46 


32 


29 


29, 


41 


31 


17 


22, 


44 


35 


18 


3; 


46 


34 


34 


30, 


45 


47 


24 


23, 


42 


24 


18 


4, 


44 


32 


_ 


31, 


42 


34 


29 


24, 


45. 


34 


32 


5, 


47 


39 


31 










25, 


45 


40 


36 


6, 


47 


40 


34 


I860. 








26, 


42 


31 


18 


7, 


47 


40 


35 


Jan. 1, 


45 


37 


30 


27, 


43 


28 


24 


8, 


47 


41 


37 


2, 


45 


37 


30 


28, 


48 


38 


36 


9, 


46 


38 


29 


3, 


48 


46 


40 


t • 29, 


44 


34 


31 


10, 


44 


30 


28 


4, 


46 


40 


38 


1 30, 


48 


44 


48 


11, 


43 


29 


21 


5, 


48 


44 


40 


1 31, 


48 


40 


38 


12, 


45 


32 


27 


6, 


45 


38 


32 


Feb. 1, 


47 


35 


30 


13, 


45 


32 


32 


7, 


44- 


38 


32 


2, 


47 


30 


22 


14, 


46 


34 


30 


8, 


45 


37 


23 


3, 


46 


37 


35 


15, 


45 


32 


23 


9, 


46 


42 


42 


4, 


45 


40 


30 


16, 


46 


34 


24 


10, 


48 


46 


42 


5, 


44 


34 


24 


17, 


47 


40 


38 


11, 


45 


34 


30 


6, 


46 


38 


36 


18, 


47 


42 


40 


12, 


46 


40 


38 


7, 


48 


46 


45 


19, 


47 


30 


14 


13, 


45 


36 


27 


8, 


48 


29 


9 


20, 


46 


33 


33 


14, 


46 


35 


33 


9, 


49 


42 


35 


22, 


45 


48 


33 


15, 


46 


36 


34 


10, 


48 


41 


37 


28, 


44 


34 


29 


16, 


46 


37 


32 


11, 


48 


41 1 40 


24, 


44 


33 


15 


17, 


44 


32 


28 


12, 


49 


41 


40 


25, 


42 


25 


7 


18, 


46 


36 


32 


13, 


48 


49 


50 


26, 


44 


32 


20 


19, 


45 


36 


24 


14, 


48 


42 


46 


27, 


42 


32 


21 


20, 


44 


30 


28 


15, 


48 


48 50 



1870.] 



SENATE^No. 12. 



27 







Air. 






AIK. 


. 




AlK. 




a) 








& 








« 








s 


In.' 


Out. 




1 


in. 


Out. 




^ 


In. 


Out. 


1869. 








1869. 








1869. 






Feb. 16, 


46 


42 


38 


Apr. 9, 


48 


46 


43 


May 31, 


56 


78 62 


17, 


48 


48 


41 i 


10, 


47 


42 


37 


June 1, 


52 


59 1 68 


18, 


48 


46 j 42 I 


11, 


45 


36 


34 


2, 


54 


60 ' 70 


19, 


48 


45 


33 1 


12, 


47 


44 


40 


3, 


53 


62 


70 


20, 


45 


34 


35 i 


13, 


50 


42 


44 


4, 


54 


66 


71 


21, 


48 


50 


42 ! 


14, 


46 


42 


40 


5, 


52 


64 


69 


22. 


48 


42 


44 


15, 


48 


43 


41 


6, 


53 


68 


72 


2^; 


47 


42 


39 


16, 


47 


40 


42 


9, 


54 


70 


73 


24, 


45 


40 


29 


17, 


48 


42 


47 


I 10, 


53 


65 


70 


25, 


45 


41 


33 


18, 


48 


42 


50 


i 11' 


52 


62 


71 


26, 


46 


40 


34 


19, 


49 


50 


52 


12, 


53 


"68 


73 


27, 


45 


40 


30 , 


20, 


50 


55 


60 


' 14, 


53 


62 


71 


28, 


45 


37 


24 j 


21, 


50 


56 


58 


1 15, 


52 


62 


62 


Mar. 1, 


43 


28 


24 : 


22, 


48 


50 


52 


' 16, 


56 


62 


70 





46 


32 


23 1 


23, 


49 


50 


52 


1 1^' 


56 


66 


76 


i; 


48 


42 


40 ' 


24, 


51 


68 


65 


' 18, 


53 


64 


80 


4, 


47 


40 


39 1 


25, 


49 


58 


56 


! 19, 


53 


76 j 86 


5, 


42 


32 


91 


26, 


52 


58 


67 


j 20, 


52 


68 1 72 


6, 


45 


34 


28 1 


27, 


51 


56 


68 


' 21, 


54 


74 


68 


7, 


44 


31 


21 ! 


28, 


50 


48 


56 


24, 


53 


69 


80 


8, 


45 


31 


27 


29, 


48 


50 


40 


; 26, 


53 


70 


72 


9, 


46 


38 


39 


30, 


52 


64 


56 


' 27, 


53 


68 


70 


10, 


47 


38 


40 ! 


May 1, 


45 


36 


30 


i 28. 


53 


68 


76 


11, 


49 


46 


45 ; 


2, 


47 


43 


42 


: 29, 


53 


68 


72 


12, 


46 


36 


34 : 


3, 


50 


48 


44 


30, 


53 


66 68 


13, 


46 


38 


36 ! 


4, 


48 


44 


42 


July 1, 


53 


70 76 


14, 


48 


46 


42 


' 5, 


51 


50 


50 


2, 


52 


71 77 


15, 


46 


36 


32 


! 6, 


50 


50 


46 


3, 


53 


68 74 


16, 


45 


33 


22 


! 7, 


50 


51 


49 


4, 


54 


72 


82 


17, 


46 


35 


30 


1 8, 


51 


55 


56 


5, 


53 


70 


75 


18, 


44 


34 


28 


9, 


49 


51 


59 


6, 


52 


68 


72 


19, 


48 


34 


38 


! 10, 


50 


49 


62 1 


7, 


52 


67 


71 


20, 


47 


38 


37 


11, 


54 


72 


64 , 


8, 


52 


70 


78 


21, 


45 


38 


21 


1 12, 


50 


49 


58 


9, 


53 


72 


79 


22, 


45 


37 


32 


13, 


54 


64 


74 1 


10, 


53 


71 


82 


23, 


47 


38 


40 


14, 


52 


58 


62 1 


11, 


52 


68 


80 


24, 


52 


50 


44 


15, 


53 


53 


57 1 


12, 


52 


70 


80 


25, 


48 


38 


44- i 


' 16, 


56 


68 


74 ! 


13, 


52 


69 


79 


26, 


48 


43 


48 I 


17, 


54 


68 


64 i 


14, 


52 


68 


78 


27, 


48 


44 


54 


18, 


54 


68 


68 


15, 


52 


70 


79 


28, 


52 


56 


55 


19, 


51 


61 


59 : 


1 16, 


52 


70 


80 


29, 


48 


46 


48 


20, 


52 


60 


54 , 


1 17, 


52 


66 


76 


30, 


48 


47 


46 


21. 


53 


62 


56 


18, 


53 


68 


76 


31, 


48 


44 


41 


22, 


52 


69 


59 1 


19, 


53 


74 


78 


Apr. 1, 


52 


60 


56 


,23, 


54 


69 


59 1 


20, 


54 


73 


79 





48 


44 


42 


24, 


56 


66 


66 : 


21, 


53 


76 


76 


5; 


47 


43 


41 


25, 


51 


59 


66 i 


22, 


53 


80 


78 


4, 


45 


38 


30 i 


1 26, 


52 


60 


76 


23. 


54 


78 


78 


5, 


47 


38 


42 


27, 


52 


58 


68 


24, 


53 


72 


80 


6, 


48 


37 


41 ! 


28, 


53 


56 


68 


25, 


55 


78 


85 


7, 


50 


39 


48 1 


29, 


54 


66 


68 


27, 


55 


78 


84 


8, 


48 


46 


«j 


30, 


52 


62 


68 


28, 


54 


76 

1 


80 



28 



RIYER FISHERIES. 



[Jan. 







AIR. 




j 


AlE. 




c 


AIB. 




1 


In. 


Out. 






In. 


Out. 




■2 


In. 


Out. 


1869. 








I860. 








1869. 








July 29, 


53 


78 


84 


Sept. 15, 


54 


67 


72 


Oct. 24 


50 


58 


60 


30, 


55 


78 


84 


16, 


53 


69 


74 


25 


49 


42 


40 


31, 


54 


76 


81 


17, 


54 


70 


75 


26 


48 


40 


38 


Aug. 1, 


53 


76 


80 


18, 


54 


72 


_ 


27 


47 


45 


43 


2, 


53 


74 


78 


19, 


55 


74 


- 


28 


46 


39 


37 


3, 


52 


73 


79 


20, 


55 


75 


85 


29 


47 


43 


43 


4, 


52 


72 


79 


21, 


52 


70 


74 


30 


48 


46 


40 


8, 


52 


71 


78 


92 


54 


68 


70 


31 


48 


46 


42 


9, 


52 


75 


75 


23; 


54 


64 


70 


Nov. 1 


48 


46 


42 


10, 


52 


72 


78 


24, 


54 


66 


69 


2 


48 


52 


46 


13, 


53 


76 


80 


25, 


53 


68 


72 


3 


46 


46 


49 


14, 


54 


76 


81 


26, 


53 


72 


74 


4 


48 


52 


52 


15, 


55 


75 


80 


27, 


54 


64 


60 


5 


48 


52 


52 


16, 


54 


76 


82 


28, 


51 


62 


52 


6 


48 


42 


51 


17, 


52 


68 


74 


29, 


52 


60 


65 


7 


48 


42 


38 


18, 


52 


62 


64 


30, 


53 


65 


68 


8 


46 


38 


34 


19, 


51 


62 


63 


Oct. 1, 


54 


68 


70 


9 


48 


40 


40 


20, 


52 


62 


62 


2, 


53 


64 


72 


10 


46 


45 


41 


21, 


55 


78 


90 


3, 


53 


74 


82 


11 


48 


45 


40 


22, 


53 


75 


82 


4, 


53 


74 


78 


12 


46 


40 


46 


23, 


52 


72 


79 


5, 


51 


70 


70 


13 


46 


41 


37 


24, 


52 


73 


80 


6, 


50 


52 


50 


14 


48 


40 


40 


27, 


53 


74 


81 


7, 


51 


54 


55 


15 


47 


40 


36 


29, 


54 


76 


83 


8, 


'51 


57 


59 


16 


44 


34 


30 


30, 


54 


76 


84 


9, 


49 


51 


50 


17 


46 


40 


40 


Sept. 1, 


55 


65 


60 


10, 


50 


57 


60 


18 


46 


42 


40 


2, 


52 


62 


68 


11, 


51 


54 


70 


19 


45 


42 


42 


3, 


53 


62 


69 


12, 


50 


64 


70 


20 


40 


43 


45 


4, 


54 


68 


70 


13, 


51 


61 


62 


21 


46 


44 


36 


5, 


55 


70 


78 


14, 


51 


60 


70 


22 


47 


42 


38 


6, 


54 


70 


82 


15, 


50 


60 


68 


23 


46 


40 


38 


7, 


55 


72 


85 


16, 


49 


51 


54 


24 


46 


41 


40 


8, 


53 


75 


81 


17, 


52 


62 


60 


25 


46 


40 


36 


9, 


55 


75 


70 


18, 


49 


52 


51 


26 


46 


36 


34 


10. 


53 


70 


64 


19, 


48 


46 


47 


27 


47 


38 


37 


11, 


54 


65 


68 


20, 


49 


47 


48 


28 


45 


40 


34 


12, 


54 


68 


70 


21, 


49 


50 


52 


29 


47 


38 


38 


13, 


54 


69 


72 


22, 


49 


53 


53 


30 


48 


32 


32 


14, 


55 


67 


73 


23, 


48 


54 


56 











1870.] 



SENATE— No. 12. 
Mean TeTiiperatures. 



29 





Air outside. 


Water. 




Air outside. 


Water. 


1S68. 


Deg. 


Deg. 


1869. 


Be. 


Deg. 


December, : 


27.3 


45.1 


June, . 


72.1 


53.2 






. 


JulVv • 


78.7 


53. 


1869. 






August, 


78. 


53.1 


January, . 


31.5 


45 5 


September, 


71. 


53.7 


February, . 


35.4 


46.9 


October, . 


56.2 


49 8 


March, 


35.7 


46. 


November,. 


398 


46.5 


April, 


48. 


48.6 








May, . . . 


59. 


51.1 


Meanforl2m'ths, 


52.7 


49.4 


Highest air, August 21, 




. 90^ 




Lowest air, December 25, 




7= 




Diflference, 




83^ 




Highest water, June 16, 




56^ 




Lowest water, December 29, 




40^ 




Diflference, 




16° 



Though the air outside varied 83° during the year, and the 
water only 16°, the mean annual temperature of air and water 
differs but 3.3°. It is, therefore, probable that the mean 
annual temperature may be got pretty nearly, in these latitudes, 
by testing a cold spring and making a small correction for 
Slimmer or winter. If this rule holds good, it would afford a 
rapid method of laying down approximate isothermal lines. 
As the salmonidae (when not in the sea) all like spring 
water, it would be proper to say of them, not that they enjoy 
cold water, but water that varies little ; because, in winter, they 
seek relatively ivarm water, that is to say, of a temperature of 
45°, while the common pond water may barely be over 32°. 
By following successive figures it will be observed that, al- 
though, on the whole, the water is coldest in cold months and 
warmest in warm months, it by no means regularly follows the 
air. To take an instance : on January 8, the air fell 9°, while 
the water rose 1°. On December 19, the air fell 26°, wliile the 
water remained steady. On November 20, the water dropped 
6° (!) the air rose 1°. The next day the water rose 6° (!) and 
the air fell 9°. Now what were the conditions on November 



80 • RIVER FISHERIES. [Jan. 

20 ? There was tlie greatest general gale of the whole year ; a 
gale that began as far west as Cheyenne, and drove east with 
great fury. The same is true of the more local hurricane of 
September 8. The water then fell 2° ; the air only 4°. The 
next day the air hd^di fallen 11°, the water risen 2°. The man 
who took the observations is confident that the temperature of 
the water always falls before a storm ; but, as this fall is often 
complicated by the variation of the air, there is often difficulty 
in distinguishing between the two. Of course, no reliable 
results could be obtained but by long and minute observations 
with very accurate instruments, and the above figures are 
given rather as curious than as having scientific value. Al- 
though the extreme variation in the water amounts to 16° in 
comparing days, the variation in comparing the mean tempera- 
tures of months is only 8.6°. This is the most favorable con- 
dition for the trouts ; and yet, if the water be in rapid motion^ 
they will sustain a temperature of 80° for days together. 

Of the eggs received from the Miramichi river over one-half 
were defective, the most of which had failed of impregnation so 
that the eggs that hatched were as follows : — 

Salmon eggs received, .... 7,600 
" " defective, .... 4,280 



Hatched, 3,320 

^his large proportion of unimpregnated eggs is always seen 
where they are stripped from wild fish. The pressure brings 
out not only the ripe eggs lying loose in the visceral cavity, but 
many that are still attached to the ovary and are not ripe. 

Of the " St. Croix land-locked salmon " about 5,000 eggs were 
received from Mr. Ch. G. Atkins, commissioner of Maine, who 
collected them under extreme difficulties. It is, therefore, not 
surprising that only about one-third hatched. 

Land-locked salmon eggs received, . . 5,400 
" " " " defective, . . 3,600 



Hatched 1,800 



1870.] SENATE— No. 12. • 31 

The true and the land-locked salmon were kept separate, and 
before the absorption of the yolk-sac, were easily distinguished 
by the color of the oil-drops of the yolk, which were of a bright 
blood red, or of a light grass green in the land-locked, while, in 
the true salmon, they were of a fine orange. But, after they had 
entered the parr stage it was nearly impossible to recognize the 
two. Some meddlesome person having knocked down the sepa- 
rating partition, nearly all the salmon passed down and mixed 
with their kindred, after which it was quite impracticable to 
sort them out. Indeed a comparison side by side, of over a 
hundred, failed to show specific differences. They were, there- 
fore, henceforth reckoned together, and their account to the 
end of October from the time they were hatched, (about the 
middle of January,) was as follows : — 

Whole number of eggs hatched, . . . 5,120 
Young died, 420 



Living, ....... 4,700 

Of those lost, many were destroyed by accidents, one hun- 
dred being killed at a time by a quantity of gravel which was 
washed over them. Of the rest, the greater part were lost during 
the yolk-sac period. But, reckoning all together, it seems that 
92 per cent of those hatched were brought to the age of nine 
months. Nevertheless, although perfectly healthy and feeding 
heartily, these parrs grew very slowly, and, on the first of Septem- 
ber, they did not average more than one and a half inches long. 
Most of them were then taken from the hatching-trough, where 
the water was about four inches deep, and put in a long trench 
witli a foot of water and plenty of room. Here they grew rather 
better, and by the end of October, a large part of them attained 
a length of three inches. But they never got to the size of the 
trout, and this has been the experience in all the establish- 
ments. About 1,700 true salmon were hatched at the establish- 
ment of Messrs. Dexter, Coolidge and Bacon, at West Barn- 
stable, and these, from the middle of May to the last of Novem- 
ber, lost but little over 4 per cent, of their number, which is a 
fraction greater than the loss at the State hatching-house. 
Their growth was quite remarkable, some having attained five 



32 RIVER FISHERIES. [Jan. 

inches at the end of November, whereas the largest at the State 
place would not exceed three and a half inches. This growth 
was owing, perhaps, partly to their removal, early in June, to 
water two feet deep, and partly to their regular and careful 
feeding. The gentlemen, who own the Barnstable springs, are 
persons of education and experience, and they have made their 
hatching-house a thing of close study. As a result their success 
has been really brilliant. They have raised over 20,000 young 
trout from the egg, last year, with a loss of only 5 per cent, in 
the last six months. A good part of these fish are now, at the 
age of nine or ten months, 6 inches long, and some are even 
larger. They have a handsome stock of breeders, and have taken 
over 100,000 spawn, with Ainsworth's artificial bed, during the 
present season. The 20,000 or 25,000 little fish consume two 
beef livers per week, which is fed to them in the usual way, 
chopped fine. This seems the best food yet used, although 
clotted milk answers well to begin with. About an equal number 
of salmon eggs were also hatched by Mr. Brackett, and these have 
made a fair growth and have remained remarkably healthy. 

Of Trout (^Salmo fontinalis) only a few (less than 4,000) 
were hatched, and these were experimented with in various 
ways — a course which entailed loss, but which was instructive. 
It was in the first place found that the eggs require very little 
change of water. A stream the size of a quill is ample for a 
trough two feet wide and sixteen feet long; and too violent a 
flow may even kill the eggs. As soon as hatched, the embryos 
like a little more current ; and, in seeking this and endeavoring 
to conceal themselves, they pile up, one on top the other, like 
slates on a roof. It is then that they endeavor to squeeze them- 
selves into cracks and holes, whereby many may kill them- 
selves. As soon as the yolk-sac is gone, the weakly fry, now 
swimming free, require a very gentle current ; otherwise they 
get exhausted and are carried against nettings or other objects, 
where they die. Simple upright brass nettings were at first 
tried for separating and confining the fry ; but they were killed 
in numbers by this contrivance, and would even strand them- 
selves on piles of gravel arranged to moderate the flow. The 
best thing is a horizontal netting, so arranged that the water, 
in escaping, must slowly pass upward through it. Most of the 
trout were hatched from the spawn of the small, white-meated, 



1870.] SENATE— No. 12. 33 

New Hampshire trout. But there were also a few of the fine, 
red-fleshed Cape Cod trout, and these were perfectly distinct 
by their darker color and more robust form. In fact, there was 
very much more difference between these two varieties, than 
between the true and the land-locked salmon. All remained 
remarkably healthy till May, when a certain number were ob- 
served to be weakly. They grew thin and their heads seemed 
large, and soon they died. It is likely that they were naturally 
sickly, and when the yolk-sac was gone, they had not enough 
vitality to feed ; in a word, they died in iveaning-. About 200 
thus were lost. They then again throve till the beginning of 
July, when they were attacked by a mysterious disorder which 
swept away 350 in three weeks. Perfectly robust fish were 
attacked by it ; they exhibited signs of distress ; the bars on the 
body grew darker and they soon died with the mouth open, as 
if asphyxiated. The viscera were perfectly healthy. Plainly 
it was not the direct effect of want of air, for then all would 
have died at once ; moreover, these same fry, when about one 
and a half inches long, were once accidentally left for twelve 
hours, with the water shut off entirely ; yet not one died. 
There were then 5,000 fish in 25,000 cubic inches of water, or 
five cubic inches to each fish. Nevertheless, the quality of the 
water had something to do with it ; for they often revived 
when timely removed to the brook, and the mortality ceased 
when they were put in a runway. It is therefore safe to say 
that all fry should be removed to deep runways by the first of 
June. The lake trout were attacked in exactly the same way, 
but the salmon, under identical conditions, were entirely healthy. 
The trough, so long as they stay in it, should be kept perfectly 
clea7i ; and nothing should be put in except a few bits of clean 
moss, in which they like sometimes to rest, or rub themselves. 
These fishes were not very heavily fed, and they therefore did 
not exceed four inches, for the largest, at the end of October : 
this is a little larger than the wild fish in the brook, at the 
same time. The following will give an idea of the result : — 

5 



34 



RIVER FISHERI] 


ES. 


[Jan. 


Eggs hatched, .... 


, , 


3,600 


Died of the May disease . 


200 




" of the July " 


350 




Killed against nettings, <fec., 


150 




Died from ordinary causes, 


235 





935 

Living, November 1, . . . . 2,665 

About 75 per cent, of those hatched were, therefore, raised to 
the age of nine months, but, with the improved treatment in- 
dicated above, 90 per cent, should be a minimum, and this has 
been attained by the gentlemen of West Barnstable. When 
the fry are placed in open runways, care must be taken, not 
only to exclude pickerel, by nettings at the upper and lower ends, 
but other enemies also, notable among which are frogs, which 
must be slain without quarter. Water snakes, also, seize the 
adult fish, and they have been killed with a four ounce trout in 
their stomach, and another between their teeth. These snakes 
are viviparious, bringing forth twenty or thirty young early in 
October. They are exceedingly numerous about some bushy 
trout brooks, and have a most repulsive appearance, whence 
the almost hysteric terror with which the country people often 
regard them. 

The breeders in the pool came on the artificial bed and 
began to spawn on the twentieth of October,' and they had not 
finished by the first of December. The gravel of the bed 
should be very coarse ; in fact, large pebbles are best ; otherwise 
the fish throw them in every direction. At this season — in 
fact, as early as September — the flesh of the female sea-trout 
was found to have faded, from a red deeper than that of the 
salmon, to a faint pink ; it is not unlikely that a portion of the 
coloring matter is taken up by the blood and conveyed to the 
eggs, which are sometimes almost as bright as those of salmon. 

Of the Tog-ue or Lake Trout (^Salmo toma)^ Messrs. Rob- 
inson and Hoyt, of Meredith, N. H., forwarded 5,400 im- 
pregnated eggs from Lake Winnipiseogee in December. It 
was the received opinion that these eggs must be hatched in 
still water ; because this trout is a bottom fish, and one of such 
secret habits, that it has existed many years in lakes without 



1870.] SENATE— No. 12. 85 

being discovered by the inhabitants. Accordingly, nearly one- 
half were put in the supply box, but with disastrous results, 
for the majority of them died before their condition was dis- 
covered. Those in the trough hatclied perfectly. No sooner 
have they passed into the fry state, than these little creatures 
assert their species by swarming on the surface of the water, 
whereas the true trouts then swim midway between top and 
bottom, and the salmons lie still lower, often resting motionless 
on the bottom for hours together. So well marked is this 
peculiarity, that, if five hundred brook and lake trout are 
thrown together into a bucket of water, within two minutes 
every one of the latter will be in the upper third of the water ; 
every one of the former in the lower two-thirds. The little 
" lakers " are, moreover, much heavier in their motions and 
more tame. Their growth is more rapid, also. They are 
hardy and easily raised and would prove a valuable pond fish. 



Eggs received, 


, 


, 


5,400 




Destroyed, by wrong treatment, 


&c., 


2,950 




Hatched, 


, 


, 




2,450 


Died of the July disease, . 


, 


, 


150 




" of accidents, . 


, 


, 


75 




From other causes, 


• 


• 


325 


550 



Livnig, November 1, . . . . 1,900 

So that, with all errors of treatment, nearly 80 per cent, 
of those hatched were raised. 

Of the Black Bass ( Grystes fasciaius.) Several ponds and 
one river (the Concord,) have been stocked with this valuable 
fish during the year, some at the State expense, others at that 
of private persons. Mr. Tisdale has also been able to supply a 
large number to the Connecticut commissioners. 

Of the White Fish (^Coregonus albus.) It is a source of 
much regret that all the eggs collected last year failed. The 
commissioners both of New York and New Hampshire have 
this season taken the matter in hand, and we shall hope to 
profit by their experience. 

Of the WalUeyed or Glass-eyed Pike {Lucioperca.} Rev. 



36 RIVER FISHERIES. [Jan. 

Livingston Stone went in April to the head of Lake Champlain, 
at Missiquoi River, on purpose to get tliis species, or its eggs. 
He found that it could not be transported alive, and, owing to 
the floods, he failed to get any impregnated eggs. His obser- 
vations were, however, of value, and will avail on some future 
occasion. The temperature of the water was as follows : — 

April 29, 44° 

May 9, 49° 

"11, 49° 

"13, 54° 

"14, . . . . . . . 52° 

Some spawn of the common yellow perch was mixed with 
milt of the glass-eyed pike, and to judge from Mr. Stone's 
sketches and observations, a certain development of the em- 
bryo followed up to the seventh day, but not beyond that, and 
the embryo never showed movement. The spawn of the perch 
comes in a ribbon about two and a half inches wide, made up 
of gluten, like that of frog eggs. It is easily impregnated ; the 
eyes show on the eleventh day, and the fish hatches in about 
twenty-five days. The ripe males first appeared. The first 
ripe female was May 1, and all seemed to have spawned by 
May 6. The spawn of the Sucker, ( Catostomus,') comes in a 
yellow flabby mass. The eggs are no larger than a pin's head, 
but speedily absorb water and swell to the size and appearance 
of those of the shad, (about | inch.) Of all common fresh-water 
fishes their ova have least specific gravity, and the shell is so 
soft that they cannot be packed. They spawn in the first third 
of May. To add to this list we will state that our horn-pout, 
(^Pimelodus) spawns in September, in Massachusetts. Mr. 
Stone found the pickerel ripe in the beginning of May. This 
fish, to its other disagreeable and contrary qualities, adds the 
tendency to multiply females, whereby the spawn crop is in- 
creased. Among many individuals examined, last spring, it 
was rare to find a male ; not oftener, certainly, than one in four- 
teen. Their growth seems to vary much according to tempera- 
ture. In a pond fed by a large spring brook, where there was 
enough food, but cold water, their growth seemed slow, if we 
may judge by the pretty regular sizes presented by some hun- 
dreds examined, as follows : — 



1870.] 



SENATE— No. 12. 



37 



AGE. 


Length. 


Weight. 


1 year, . 




Inches. 

4^ . . 


Ounces. 


2 years, . 




7 


. . 


1* 


3 " 




10 


• 


4 


4 " 




m 


to 14^ 


8 to 12. 


5 " 




17i 


• . 


24 


6 " 




20 


• • 


40 



In a large, warm pond, covered with lily-pads, and full of 
young alewives, pickerel have reached four and five pounds in 
three years. The fortunate repeal last year of all laws for 
their protection has furnished much sport to everybody but the 
pickerel themselves. 

Appropriations. — On the first of January, 1869, there was 
left of the appropriation under chapter 344 of 1868, about 
12,500, and there was appropriated the further sum of 82,500, 
under chapter 28, General Resolves of 1869. This money, 
85,000 in all, has been spent for the purposes described in tlie 
preceding pages. Of this sum, less than 8300 has been ex- 
pended for the expenses proper of the three Commissioners ; 
the remainder has been devoted exclusively to fish culture. 

The Commissioners beg leave to suggest an appropriation of 
84,000 for the coming year. 

All of which is respectfully subraitted. 



THEODORE LYMAN, 
ALFRED R. FIELD, 
E. A. BRACKETT, 
Commissioners on Inland Fisheries, 



38 RIVER FISHERIES. [Jan. 



APPENDIX. 



[A.] 
NEW ENGLAND COMMISSIONERS OF RIVER FISHERIES. 



MAINE. 

Charles G. Atkins,* • • Augusta. 

NEW HAMPSHIRE. 

W. A. SANBORN,t Weirs. 

W. W. Fletcher, Concord. 

T. E. Hatch, Keene. 

VERMONT. 

A. D. Hager, Proctors ville. 

Ch. Barrett, Grafton. 

MASSACHUSETTS. 

Theodore Lyman, (Secretary,) . . . . . . Brookline. 

Alfred R. Field Greenfield. 

E. A. Brackett, Winchester. 

CONNECTICUT. 

W. M. Hudson, Hartford. 

Robert G. Pike, a Middletown. 

RHODE island, 

Alfred A. Reed, Apponang. 

Newton Dexter, Providence. 

* We have to record the death in March last of Mr Nathan AV. Foster, inventor of the 
Foster Fishway. As one of the Commissioners he did great service to his State in restor- 
ing the river fishes. 

t By his promotion to the Supreme Court, Judge Bellows has been obliged to retire from 
a field in which he was one of the first and most active workers. 






^/^ 











^^7- 



iTnp.X'v/En^.Uth C= 2;i-c:: 



1870.] SENATE— No. 12. 39 

IB.] 
EXPLANATION OF THE PLATE. 



Fig. 1. St. Croix land-locked salmon, (Salmo sp. (7) Young, one week 

after hatching, |-. 
Fig. 2. Togue or lake trout, (Salmo toma.) Young, about one week after 

hatching, |. 
Fig. 3. Shad, (Alosa praestahilis.) Young, just hatched, -y-. Reduced 

from PI. I., Report 1867. 
Fig. 4. Common yellow perch ( Perca fiavescem^) just hatched, f . 
Fig. 5. CT/iimpregnated trout egg which has lain 55 days in water, \. 
Fig. 6. Ripe egg of the common smoit ( Osmerus viridescens) from the ovary, 

showing the micropyle, ^^-■ 
Fig. 7. Micropyle of the same, more magnified and seen in profile. 
Fig. 8. C^nimpregnated salmon egg (^Salmo salar) 35 days in wet moss, then 

fifty days in water, and at last frozen and thawed. 
Fig. 9. Mould or " fungus," (Conferva,) which attacks eggs, and wounds on 

fish. A twig magnified 350 diameters. 
Fig. 10. Salmo solar. Salmon. Newly hatched. The tail magnified to 
show the embryonic blood-heart. 

Two years ago, Professor Agassiz discovered in the embryo of 
our common salmon (Salmo solar) a heart canying red blood, 
situated under the terminal bend of the vertebral column. The 
vessels issuing from it ramify in the membranes of the caudal fin, 
and it receives the blood returning from that organ. 

A desire to follow its transformation into the system of the 
lateral line, with the vessels of which it appears to be connected, 
though the mode of connection could not be distinctly traced, has 
prevented Prof Agassiz from publishing his observations. We are, 
however, requested by him to mention these facts here, since he 
has been prevented by illness this year from resuming and com- 
pleting his investigation. 

This caudal heart is easily distinguished under a slight magnify- 
ing power through the transparent tissues. It seems to be most 
active and to acquire its maximum development during the first 
two weeks following the escape of the embryo from the shell. Its 
pulsations do not coincide with those of the heart proper. 



40 RIVER FISHERIES. [Jan. 

The pulsations in the true heart of the lake trout ( Salmo toma) 
when newly hatched are from 66 to 71 a minute ; and this is proba- 
bly the number for most trout s. 

a, brain ; J, eye ; c, mouth ; d, yolk-sac ; e, embryonic dorsal fin ; /, embry- 
onic caudal fin ; g^ embryonic anal fin ; A, anal opening; z, yolk vein, which 
disappears later ; k^ pectoral fin ; Z, oil drops of the yolk ; m, blood vessels of 
the tail; 72, main vein and artery of the body; the latter lies above, next the 
chorda dorsalis, the former, below ; o, the heart ; /?, rays of tail forming ; 
q, embryonic blood-heart in the tail ; r, left ventral fin forming. 

The embryos of four species, representing the Salmonoid, Clu- 
peoid, and Percoid fishes are here shown, side by side, to give a 
comparison. We see, notwithstanding their great differences, that 
they have common characters — usually called " embryonic." Thus 
they all have a continuous fin running from the forward part of 
the body, along the back, round the tail, and along the belly to 
the yolk-sac, {e.f.g.) This reminds us of the adult state of certain 
fishes, as, the eels, the hake, and the cusk. Again, all these little 
fishes possess a yolk-sac, {d.) large and pointed in the salmon ; large 
egg-shaped in the togue ; small egg-shaped in the shad ; long, 
slender, and cylindrical in the perch. The yolks of three of the 
four have oil di'ops easy to be seen; large and clustered in the 
salmon, small and dispersed in the togue ; and forming one globule 
in the perch, (i.) The pectoral fin is, in all, separate, fully indi- 
cated, and of considerable size. It is the fanning of this organ that 
keeps up the brisk current past the gills of the embryo. In all, the 
anal opening traverses the substance of the embryonic ventral fin ; 
but, how different its position. In the shad, it opens at the last 
quarter of the length ; in the trouts at the last third, and in the 
perch, at the middle point and immediately behind the yolk-sac. 
The mouth is already indicated, but is developed very differently : 
the salmon, with its great sac of food to nourish it for many weeks 
has a lower jaw already well marked, but the mouth is constantly 
closed, or nearly so ; the perch, on the contrary, with a slender 
stock of food on hand, has a strong head and mouth, (c.) and the 
latter is habitually open, ready for food. The shad at hatching has 
the mouth barely cut through ; indeed, it promises to have a de- 
velopment as slow as that of the salmon, for the features of the 
fish are excessively embyronic and the yolk-sac pretty large. Never- 
theless, it passes through its stages with such rapidity that the artist 
cannot properly follow them with his pencil. "Why its " struggle 
for life " should be so brisk, does not appear. 



1870.] SENATE— No. 12. 41 

Figs. 5, and 8, are given to show the aspect of z^mmpregnated 
eggs. People often mistake the oil drops, or the partial disintegra- 
tion of the yolk, for a growing embryo. By comparing h. in Figs. 
8 and 1, the position of these oil drops will be seen in the ^g^ and 
in the newly-hatched young. The young perch is further charac- 
terized by the fact that the pectorals do not fan constantly^ but only 
from time to time. Its blood is colorless ; its pulse 120 per minute. 
The pulse of the salmons and trouts is, in the embryo at the 50th 
day, from 66 to 71. A newly hatched salmon may h^frozeii^ and 
the heart may entirely cease to contract^ but, on thawing, it begins 
slowly to move, at first 18 beats a minute, and within an hour 
rising to 50. Nothing is more astonishing than to witness this 
vital action in a creature so transparent that each organ can be 
seen ! The smelt eggs are remarkable for their large micropyle, the 
opening at which the spermatoza enter (figs. 6, 7.) A smelt of 
3 oz. carries about 51,000 ripe eggs. The conferva (fig. 9,) when 
seen with a low power looks like a confused mass of fine, trans- 
parent thread ; a twig, under a high power, is seen to be simply 
branched. 



42 RIVER FISHERIES. [Jan. 

[C] 
LEGISLATION FOR 1869. 



THE FISHERY ACT. 

The need for such a law as this is the same as the need for a law- 
protecting any industry. While on the one hand we recognize the 
fact that a supply of good fresh-water fishes (among which we class 
the salmon, shad, trout, alewife, black and striped bass and smelt,) is 
essential as food for our people, especially in warm weather, when 
transportation is difficult, we are still compelled to admit that the 
supply is constantly diminishing, and that some of these fishes are 
are in several localities exterminated. For this deplorable state of 
things, there is but one remedy, and that is to make fishes, under 
certain conditions, property, and thus give the same stimulus to 
the cultivation of fish, that is given to the raising of any other live 
stock. Under the knowledge that we now have the methods of 
raising food-fishes, such cultivation is just as easy as that of poultry. 
The needed protection and encouragement are given in the pro- 
posed law before you. 

As to the foundations of this, law, they are all to be found either 
in the ancient charters of the colony, in the General Statutes, or in 
the decisions of our courts ; so that nothing novel is presented, but 
the whole structure stands on time-honored ground-work. In other 
words, this Act is a natural develoj^ment of the rights and customs 
of this Commonwealth. 

[Chap. 384.] 
An Act for encouraging the Cultivation of Useful Fishes. 
Be, it enacted, ^c, as follows : 

Sect. 1. All the laws of the Commonwealth relating to the 
culture, preservation, capture, or passage of fish, shall be known as 
the laws relating to Inland Fisheries. 

Sect. 2. The commissioners, under chapter two hundred and 
thirty-eight of the acts of eighteen hundred and sixty-six, shall be 
styled the Commissioners on Inland Fisheries, and shall be a board 
consisting of three persons appointed by the governor, by and with 
the advice and consent of the council, each for a term of five years 
from the time of his appointment. Vacancies in the board by the 



1870.] SENATE— No. 12. 43 

expiration of the terms of service of the members, or otherwise, 
shall, from time to time, be filled in like manner, and for like terms 
of time. 

Sect. 3. Each of said commissioners may personally, or by 
deputy, enforce all laws regulating inland fisheries ; and may seize 
and remove, summarily if need be, all obstructions to the passage of 
migratory fish illegally used, except dams, mills or machinery, at 
the expense of the persons using or maintaining the same. 

Sect. 4.* Whenever either of said commissioners finds that 
that there is no fishway or an insufiicient fishway in or around a 
dam where the law requires a fishway to be kept and maintained, 
he may, at his discretion, enter with workmen and materials upon 
the premises of the person or corporation required to maintain said 
fishAvay, and may improve said fishway, or cause one to be con- 
structed where none exists, at the expense of said person or cor- 
poration, and may take, if necessary, the land of any other person 
or corporation not obliged by law to maintain said fishway, pro- 
vided compensation shall be rendered to the owner thereof, in the 
manner provided in relation to land taken for highways, and said 
expense shall be a charge against said person or corporation re- 
quired by law to construct and maintain such fishway, to be re- 
covered in an action of contract in the name of the Commonwealth, 

* Sect. 4 empowers the Commissioners to construct a fishway in any clam where the 
law requires one, and to take land, as is provided for highways, and to require payment 
for the whole from the dam-owner. 

By the old decision in Stoughton rs. Baker, (4 Mass. 522,) and by subsequent decisions, 
it is fully established that every dam-owner on a stream naturally frequented by migra- 
tory fishes, holds his dam on condition of maintaining a fishway, any adverse use to the 
contrary notwithstanding; and he can onl}' be excepted by legislative charter. In some 
parts of the State this law has been neglected; in other parts it has been carried out. 

We now have fishways of a form that uses only the surplus water of the dam-owner, and 
which maj' be used without damage to him. This fact, together with the strong interest 
that had risen in restocking our waters, moved the legislature to pass an Act giving 
authority to the Commissioners to enforce the law as to fishways, whenever they deemed 
it expedient, (chap. 344, 1867,) and the above section is but a more precise and full state- 
ment of this Act. It is plain that such a law is a benefit both to the dam-owner and to 
the fishermen, by throwing the administration of the common law into the hands of 
responsible State oflicers, whose duty it is to see that the rights and interests of both 
parties are well guarded. Whereas, without such delegated powers, the fishermen would 
have recourse to expensive lawsuits, which would lead to loss of time and money, 
and to ill-blood among neighbors. This is especially true where there are several dams 
upon the same stream, and where all the owners, but one, are wiUing to put in fishways, 
while that one, either through ill-will or ignorance, refuses to do so. In such an extreme 
case the Commissioners would avail themselves of the authority of this section. It is rare 
that the provision in regard to taking land comes into play; but occasionally, where a 
" trench " fishway is used, it passes through land not belonging to the dam-owner. The 
amount of land to be taken at such times would not exceed that required for an ordinary 
foot-path. 



44 RITER FISHERIES. [Jan. 

with costs and interest at the rate of twelve per cent. : provided, 
that when a fishway has been constructed in accordance with the 
provisions of this section, said commissioners shall not reqim-e the 
alteration of the same by the owner of the dam within five years 
from the completion of the same. 

Sect. 5. Said commissioners may take, or cause to be taken, 
any fish, at any time or manner for purposes connected with fish 
culture, or with scientific observation. 

Sect. 6. Each of said commissioners may, in the discharge of 
his duties, enter upon and pass through or over private property 
without rendering himself liable in an action for trespass. 

Sect. 7. * The riparian proprietors of any pond, the superficial 
area of which is not more than twenty acres, and the proprietors of 
any 2)ond or parts of a pond, created by artificial flowage, shaU have 
exclusive control of the fisheries therein existing, but this shall not 
abridge any rights heretofore granted, to fish for hening or ale- 
wives in ponds of the above dimensions which are connected with 
salt water, nor afiect any previous laws restricting fishing for any 
period of time. 

Sect. 8. The fishery of any pond, the superficial area of which is 
more than twenty acres, shaU be public, except such as may have 
been specially granted by law or leased as hereinafter provided, and 
all persons shall, for the purpose of fishing, be allowed reasonable 
means of access to the same, without rendering themselves liable to 
prosecution or action for trespass. 

Sect. 9. The commissionei*s, or any two of them, may, in the 
name of the Commonwealth, lease any great pond, exceeding 
twenty acres in area, for the purpose of cultivating useful fishes, for 
such periods of time and on such terms and conditions as shall seem 
to said commissioners most for the public good ; and the lessee of 
such pond may occupy a portion, not exceeding one-tenth part 
thereof, with inclosures and appliances for the cultivation of useful 
fishes ; but this shall not aflTect any public rights in such pond, other 
than the right of fisheries ; and the appliances and enclosures used 
by the lessee shall be so placed as not to debar ingress to or egress 
from such pond at proper places. 

* Sect. 7 gives control of fisheries to riparian owners of ponds of not over twenty 
acres, except the herring fisheries already established. 

Our Ancient Charters (chap. 63, p. 148. ) make all ponds public that exceed ten acres ; 
but it seems advisable to increase this limit to twenty acres, because a twenty-acre 
pond is really a small affair, and such as hundreds of our farmers have within the limits 
of their land, and, practically, such small ponds have come to be looked upon as private ; 
nor would well-disposed people be usually disposed to cross private lands for the purpose 
of fishing therein. 



1870.] SENATE— No. 12. 45 

Sect. 10. The commissioners shall have the custody of all 
leases made under the provisions of this act, and may cause any 
agreements, rights, reservations, forfeitures and conditions therein 
contained to be enforced, and for that purj^ose may institute pro- 
ceedings in the name of the Commonwealth, and may take posses- 
sion of any premises, for conditions in such lease thereof being 
broken, and revesting the Commonwealth therewith may again 
lease the same. 

Sect. 11. The county commissioners for each county shall, upon 
the request and at the expense of any party claiming to be interested 
in any great pond, cause the same to be measured, and such 
measurement when determined shall be recorded in the town clerk's 
office of each town within which said pond is situated ; and said 
measurement shall take place in the month of July, and no arm or 
branch shall be computed as a part of any pond, unless said arm 
or branch be at least fifty feet in width and one foot in depth. 

Sect. 12. The riparian proprietors of any pond of less area than 
twenty acres, shall have all the privileges given them by section 
seven as soon as the said county commissioners have determined 
that their ponds do not exceed the above limit. 

Sect. 13. Any pond within the limit of twenty acres in area, 
bounded in part by land belonging to a town or county of tl^e Com- 
monwealth, shall only become the exclusive property of the indi- 
vidual proprietors as to the fisheries therein, upon payment to the 
town treasurer, county commissioners or state treasurer, of a just 
compensation for their respective rights therein, to be determined 
by a board of three persons, one of whom shall be one of the 
riparian proprietors of said pond, one the chairman of the board of 
selectmen, if the rights of a town are in question, or of the county 
commissioners, if the rights of a county or the Commonwealth are 
in question, and one to be appointed by the commissioners on 
inland fisheries. 

Sect. 14.* For the purposes of this act no tidal stream shall 
be considered navigable above the point where, on the average 
throughout the year it has a channel less than forty feet wide and 
four feet deep during the three hours nearest the hour of high tide. 

Sect. 15. The governor, with the advice and consent of the 
council, upon the recommendation of the commissioners on inland 

* Sect. 14 defines a navigable tidal stream. 

The terms "river" and "navigable" have in law a meaning very uncertain, if, 
indeed, they have a meaning at all. In this definition of "navigable," the dimensions 
of an average canal have been used. 



46 RIYER FISHERIES. [Jan. 

fisheries, may limit or prohibit, for a period not exceeding five 
years at a time, fishing in the navigable tidal waters of specified 
streams, and in the unnavigable waters of streams, except in such 
portions as may be inclosed, according to the provisions of section 
sixteen ; and whoever fishes in streams whose fishery is thus limited 
or prohibited, shall forfeit for the first ofience ten dollars, and for 
every subsequent offence fifty dollars, and shall in addition forfeit 
all fish captured and apparatus used. 

Sect. 16. Any riparian proprietor may, within the limits of his 
own premises, inclose the waters of a stream not navigable, for the 
cultivation of useful fishes : promoted^ he furnishes a suitable pas- 
sage for migratory fishes naturally frequenting such waters. 

Sect. 17. The governor, by and with the advice and consent 
of the council, may, for the purposes of this act, arbitrarily fix and 
define the tidal bounds and mouths of streams upon recommenda- 
tion of the commissioners on inland fisheries. 

Sect. 18.* Fishes artificially propagated or maintained shall be 
the absolute property of the person propagating or maintaining 
them. 

Sect. 19.t Whoever fishes in that portion of a pond, stream or 
other water in which fishes are lawfully artificially cultivated or 
maintained, without the permission of the proprietors, shall forfeit 
not less than one dollar nor more than twenty dollars for the first 
offence, and not less than five nor more than fifty dollars for any 
subsequent offence. 

Sect. 20. Any person legally engaged in the artificial culture 
and maintenance of fishes, may take them in his own waters how 
and when he pleases, and may have them in his possession for pur- 
poses properly connected with said culture and maintenance, and 
may at all times sell them for these purposes, but shall not sell 
them for food at seasons when their capture is prohibited by law. 

Sect. 21. t Whoever, between the fifteenth of April and the 
fifteenth of December, in each year after this year, uses any sweep- 

* Sect. 18 orders that cultivated fishes shall be the property absolute of the owner. 

This power o^ property lies at the root of all fish-culture; without it, all laAvs are 
useless. 

t "Artificially cultivating or maintaining fishes " is any act for their increase or pres- 
ervation — such as putting up notices forbidding fishing, or feeding fishes, or introducing 
new ones, &c. 

X Sect. 21 orders that no small-mesh net shall be used in our larger rivers during 
certain seasons. 

It is absolutely necessary that our larger rivers should be reserved for the great fishes 
like salmon and shad. This only can be done by keeping out small-meshed nets, during 
the proper season. The capture of the smaller species, such as alewives, should be con- 
fined to the tributary streams, where they can be much better taken. 



1870.] SENATE— No. 12. 47 

seine or hand or dip-net in the waters of the Connecticut, West- 
field, Deerfiekl, Miller's, Merrimack, Nashua or Housatonick Rivers, 
or their tributaries, having a mesh which stretches less than five 
inches when new and dry, shall forfeit, for the first offence, twenty- 
five dollars, and for every subsequent offence, fifty dollars ; and in 
each case shall also forfeit the apparatus thus unlawfully used, and 
the fish captured. 

Sect. 22. Whoever uses any sweep-seine or combination of 
sweep-seines in such a manner as at any moment to close or seri- 
ously obstruct more than two-thirds of the width of the stream at 
the place where it is used ; and whoever delays or stops in paying 
out or hauling any sweep-seine, or hauls any sweep-seine within 
one-half mile of a point where such seine has been hauled within 
an hour, shall be liable to the same penalties and forfeiture set 
forth in the preceding section : provided^ that this section shall not 
apply to seines used in the smelt fishery; diXidi provided^ further^ 
that none of the provisions of this section shall affect the fisheries 
for shad or alewives in Taunton Great River. 

Sect. 23. Whoever at any time obstructs with a salmon -pot 
more than one-half of a waterfall, channel or rapid, or sets, uses or 
maintains in any of the waters of this state a salmon-pot, the diam- 
eter of which is more than two feet, or who, when the taking of 
salmon is forbidden by law, sets, uses or maintains in any of such 
waters, any salmon-pot whatever, shall forfeit said salmon-pot and 
all fish captured, and shall pay ten dollars for the first offence, and 
twenty for every subsequent offence. 

Sect. 24. Whoever takes salmon, shad or alewives in any of 
the waters of this Commonwealth, except the Connecticut, Taun- 
ton Great, Nemasket and Merrimack Rivers, or their tributaries, in 
any other manner than by naturally or artificially baited hook and 
hand-line, on any day of the week but Monday, Wednesday, Fri- 
day and Saturday, shall forfeit for each offence the penalties pre- 
scribed for taking these species of fish at seasons prohibited by law. 

Sect. 25.* Every clerk, superintendent or other ofiicer having 
charge of a market, provision store or other place where fish are 

* Sect. 25 makes it the duty of all officers of markets to report to a magistrate when 
any fish are illegally offered for sale. 

It is the fault of most of our laws that the sellers and buyers are not reached; there- 
fore, if the person who takes the game be not arrested in the act, there is no conviction. 
The English and Canadians understand this better, and they include sellers, buyers and 
possessors in the number of persons liable. Our marketmen are usually well disposed to 
carry out such laws, the effect of which is to increase the quantity and improve the 
quality of their stock ; but they have no incitement to obey, and every temptation to 
disobey. 



48 RIVER FISHERIES. [Jan. 

sold, shall immediately inform a constable or a trial justice in the 
town or city where said premises are situated, when any fish which 
has been taken in violation of law, has been offered for sale on said 
premises : provided^ that such clerk, superintendent or other officer 
shall know or have reasonable cause to believe that said fish has 
been so taken ; and for each neglect so to do, such clerk, superin- 
tendent or other officer shall pay a fine of not less than five dollars 
nor more than fifty. 

Sect. 26.* "Whoever takes or catches fishes which at any sea- 
son frequent fresh w^ater, except eels and pickerel, in any other 
manner than by artificially or naturally baited hook and hand-line, 
hand or dip-net, sweep-seine or salmon-pot, shall forfeit a sum not 
less than five dollars nor more than fifty dollars : promded^ that 
nothing herein contained shall authorize the taking or catching of 
trout, land-locked salmon or lake trout, in any other manner than 
by hook and hand-line; ^ti^ provided^ that towns may be allowed 
to permit the use of set nets for the capture of herring or alewives. 

Sect. 27. Whoever takes or catches any salmon within the 
limits of this Commonwealth, or who buys, sells or has in posses- 
sion the same taken within said limits between the first day of 
August and the first day of May, shall forfeit for each offence not 
less than ten, nor more than fifty dollars ; and whoever buys, sells 
or has in possession any young salmon less than one foot in length 
shall forfeit five dollars for every young salmon of said dimensions 
bought, sold or had in possession. 

Sect. 28. Whoever takes or catches any trout, land-locked sal- 
mon or lake trout, within the limits of this Commonwealth, or buys, 
sells or has in possession the same taken within said limits between 
the twentieth day of September and the twentieth day of March 
in each year, or takes or catches any trout, land-locked salmon or 
lake trout with any net or salmon-pot, at any season of the year, 
shall forfeit for each offence a sum not less than one nor more than 
twenty dollars. 

Sect. 29. Whoever catches any shad at any other season than 
between the first day of March and the fifteenth day of June, shall 
forfeit for each shad five dollars. 

t Sect. 26. It forbids fishing in inland waters except with such tackle as is allow- 
able by the nature of this fishing. 

This section is made necessary by the outrageous inventions now used by poachers in 
our ponds and brooks, to exterminate the few fish left. Traps, trawl-lines, and every 
other engine are called into play, and render the operation of re-stocking futile. It should 
be observed that the term ^'■hand-line'" in this Act refers to every line (whether with a 
pole or not) that is controlled by the hand of the fisherman, in distinction from set-lines 
that are left more or less to themselves. 



1870.] SENATE— No. 12. 49 

Sect. 30. Wlioever takes or catches any black bass in any of 
the ponds or streams of this Commonwealth from the first day of 
December to the first day of June in each year, or at any time except 
with natm-ally or artificially baited hook and hand-line, or buys, 
sells or has in possession any such fish taken within the limits of 
this Commonwealth, shall forfeit for each offence not less than two 
nor more than twenty dollars. 

Sect. 31. Whoever takes or catches any smelts or white perch, 
in any of the waters of this Commonwealth, in any other manner 
than by naturally or artificially baited hooks and hand-lines, 
between the fifteenth day of March and the first day of June, in 
each year, or takes or catches any smelts with a net of any kind, 
on any known spawning ground within said Commonwealth, shall 
forfeit for each smelt so taken or caught, the sum of twenty-five 
cents : provided^ that nothing herein contained shall apply to any per- 
son catching smelts in any seine or net in Taunton Great River, or in 
Dukes County while fishing for hening or alewives, or to the lessees 
of the towns of Yarmouth and Dennis while fishing for perch or 
alewives in Bass River or its tributaries, or to any person lawfully 
fishing for perch, herring or alewives in either branch of Westport 
River. 

Sect. 32. Actions and prosecutions under the laws relating to 
inland fisheries shall not be commenced except within four months 
from the time when the cause of action accrues or the ofience is 
committed. 

Sect. 33. One-half of the money recovered as a penalty in any 
case arising under the laws relating to inland fisheries, shall be paid 
to the person making the complaint in the case in which the same 
is recovered, and the remainder to the Commonwealth. 

Sect. 34. The two hundred and forty-ninth chapter of the acts 
of the year eighteen hundred and sixty-six, and the one hundred 
and seventy-ninth chapter of the acts of the year eighteen hun- 
dred and sixty-eight, and all legislation heretofore enacted limiting 
the time and season when pickerel may be taken are hereby re- 
pealed. {^Approved June 12, 1869. 

CBnvrryAL Procedure uxder the Act for Excouragixg the 
Cultivatiox of Useful Fishes. 
Having learned the name of the party who has committed the 
ofience under the statute, the prosecutor must then proceed to pro- 
cure his arrest. For this a warrant is necessary. It may be granted 
by any judge of a police, or municipal court, by a trial justice, or by 
any justice of the peace, of the county wherein the oflfence has been 
7 



50 RIVER FISHERIES. [Jan. 

committed. If, however, the oftence be committed within one 
hundred rods of the boundary Une between two counties it may be 
taken cognizance of in either of them ; and an offence committed 
upon the sea, within one league of the shore, may be prosecuted and 
punished in the adjacent county. The warrants, issued by justices 
of t^e peace, not trial justices, must be made returnable before some 
trial justice, or police court ; justices of the peace receive no fee for 
issuing warrants in criminal cases. 

The prosecutor or some one in his behalf, must be prepared to 
swear to the truth of the charge which will be reduced to writing 
by the magistrate, if he deems it right to take action in the case, 
according to the forms which follow these remarks, and will be 
sworn to before him, and then prefixed to his wan-ant, which is 
delivered to a constable or police officer to be executed. 

It is then the duty of such officer to arrest the defendant; when, 
if he demand to be released on bail until the time specified for his 
trial in the warrant, bondsmen will be required wiio must be, in 
the opinion of the magistrate, pecuniarily responsible for the amount 
of the penalty and all costs of trial, service, etc. The defendant 
can then be released until the time specified for his trial, at which 
time, if he does not appear, his bail will be forfeited, and the bonds- 
men must pay. If, however the bondsmen see fit to surrender the 
defendant, they can do so at any time and be relieved from all 
responsibility. 

On the appearance of the defendant before the court he will be 
put upon his trial or examination. Trial justices and police courts 
have jurisdiction in the first instance of all offisnces of which 
the fine is not above fifty dollars, and the imprisonment not more 
than six months in the house of correction, or jail, or both of said 
penalties. Most of the offences under the fishery acts, consequently, 
are within the original jurisdiction of the lower courts. 

In these courts the Commonwealth is represented by no counsel 
as it is by the district-attorneys in the superior court. On this 
account the trial justice is compelled to act both as a judge and 
prosecuting officer, unless, as is now very frequently the case, the 
private prosecutor employs counsel. It would certainly be ad- 
visable in important cases to employ counsel, for otherwise flagrant 
offenders may escape conviction. This is the more necessary from 
the fact that the Commonwealth has no right of appeal in any 
criminal case, while it is always enjoyed by the defendant. 

The defendant can demand a jury of twelve men in the superior 
court and waive examination in the lower court, if he so elects. If, 
on con\iction, a fine is imposed, the defendant may be committed 



1870.] SENATE— Xo. 12. 51 

until it is paid. Some forms of complaint drawn imder the different 
sections of the Act are annexed, which may be found convenient in 
inland fishery cases. 

As the offences to be dealt ^vith under the act are entirely statute 
offences, fishes being fercE natures at the English common law, and 
everj'body having an equal right to take them with proprietoi*s of 
water, provided he could fish without trespassing, all complaints 
and indictments must follow literally the words of the statute. 

In the forms which follow, the words " force and arms " are in- 
serted in every case though a special statute has declared that they 
are not essential, unless their omission prejudices the defendant's 
case. It is, however, safer to insert them. 

Form of Complaint under Section Fifteen. 
To A. B.. Esquire, a Trial Justice -mthin and for the county of Middlesex : 
C. D.. of TTaltham, in said county, on behalf of the Commonwealth of 
Massachusetts, on oath complains, that E. F., of said TValtham, on the first 
day of June, in the year of our Lord eighteen hundred and seventy, at said 
Waltham, in said county, did fish in the navigable, tidal waters of Charles 
River, so called, (or in the unnavigable waters of a certain stream, to wit. 
Charles River in such portions of the same as were not at the time enclosed 
by riparian proprietors for the culture and maintenance of useful fishes.) and 
in certain portions of the same in which all fishing had been prohibited for the 
period of four years fi-om the first day of September, in the year of our Lord 
eighteen hundred and sixty-nine, by the governor of the said Commonwealth, 
with the advice and consent of the Executive Council of the said Common- 
wealth, and upon the recomftiendation of the commissioners on inland fisheries 
of the said Commonwealth, against the peace, etc., etc., and the form of the 
statute, etc., etc. 

Form of Complaint (or Indictment) under Section Nineteen. 
To A. B., Esquire, a Trial Justice in and for the county of Middlesex : 
C. D., of Waltham. in said county, on behalf of the Commonwealth of 
Massachusetts, on oath complains, That E. F., of said Waltham, on the first 
day of June, in the year of our Lord eighteen hundred and seventy, at 
said Waltham, in said county of jNIiddlesex, with force and arms, did fish in 
that portion of a certain stream, (pond, or other water,) in which fishes are 
lawfully cultivated and maintained artificially by said C. D., and without the 
permission of said C. D., proprietor of said fishes, against the peace of said 
CommoDwealth, and the form of the statute in such cases made and provided. 

Complaint, etc., under Section Tiventy-one. 
To A. B. Esquire, etc., etc. : 

on oath complains. That E. F.. of said Waltham, in said county 
of Middlesex, on the first day of June, in the year of our Lord eighteen 
hundred and seventy, with force and arms, at said Waltham in said county, 



52 RIVER FISHERIES. [Jan. 

said day being between the fifteenth day of April and the fifteenth day of 
December, did use a sweep seine (hand, or dip netj in the waters of a tribu- 
tary of the River, the meshes of which seine stretched less than 
five inches when new and dry, against the the peace of this Commonwealth, 
etc., etc. 

Complaint, Section Twenty-two. 

To A. B., Esquire, etc., etc. : 

That E. F., of etc., etc., on the first day of June, in the year of our Lord 
eighteen hundred and seventy, with force and arms, at said Waltham, did 
use a sweep seine, (or combination, etc.,) in such a manner as for several 
moments to cause or seriously obstruct more than two-thirds the width of the 
stream at the place where said sweep seine was used, and at the time afore- 
said was using said sweep seine for a purpose other than the smelt fishery, (or 
if in Taunton Great River, for a purpose other than the shad or alewife fishery,) 
against the peace, etc., etc. 

Or, that E. F. etc. etc., did delay or stop in hauling a certain sweep seine. 
(Conclude as above.) 

Complaint under section twenty-three. Form regular, much as 
in preceding section. 

Section Twenty-four. 
on oath complains that E. F., etc., etc., on the first day of 
in the year of our Lord eighteen hundred and seventy, said day 
being neither Monday nor etc., at said etc., with force and arms, 

in certain of the waters of this Commonwealth, other than the Connecticut, 
Taunton Great, and Merrimack and Nemasket Rivers, and their tributaries, 
to wit, in the, etc., etc., and in a manner other than with a naturally or artifi- 
cially baited hook and line, to wit, with a certain, spear, did take certain sal- 
mon, (shad, or alewives,) to wit certain, etc., against the peace, etc., etc., and 
the form of the statute, etc. 

Section Twenty-jive. 
on oath complains that E. F., etc., etc., on the first day of June, 
in the year of our Lord eighteen hundred and seventy, at Boston, in the 
county of Sufiblk, with force and arms, being a clerk, (superintendent, or other 
officer,) having charge of a certain market (place, etc.), where fish are sold, 
well knowing, (or having reasonable cause to believe) that certain fish offered for 
sale in said market, had been taken in violation of law, to wit, certain salmon 
there offered for sale, did maliciously neglect to inform a constable of said 
Boston of the fact that said salmon had been illegally captured and were ex- 
posed for sale as aforesaid, against the peace, etc., and the form of the statute, 
etc. 

Section Twenty-six. 
on oath complains that E. F., of Marshpee, in the county of 
day, etc., etc., at said Marshpee, in said 



1870.] SENATE— No. 12. 53 

county, with force and arms, did take and catch, in a manner other than with 
an artificially or naturally baited hook and hand line, hand or dip net, sweep 
seine, or salmon-pot, to wit, with a spear, divers fish at certain seasons fre- 
quenting fresh water, to wit, five trout, against the peace, etc., etc., and the 
form of the statute, etc., etc. 

Or did buy (sell, or have in possession) certain young salmon, less than one 
foot in length, to wit : five salmon of less than one foot in length. 

Section Twenty-seven. 
on oath complains that E. F., etc., etc., with force and arms, at 
Marshpee, in the county of Barnstable, the same being within the limits of 
the said Commonwealth, between the first day of August, and the first day of 
May, to wit, on the first day of September, in the year of our Lord eighteen 
hundred and seventy, did take, (catch, buy, sell, etc.,) five salmon, against 
the peace of this Commonwealth, and the form of the statute, etc., etc., etc.. 

Sections twenty-eight and twenty-nine, and section thirty 
Forms Hke preceding. 

Section thirty-one. Form like preceding, and like that of sec- 
tion twenty-six. 

Petition for Libel of Tackle, Etc., Forfeited under 
Fishery Act. 

COMMONWEALTH OF MASSACHUSETTS. 

To the Honorable the Justices of the Superior Court next to he holden at Dedham 
within and for the County of Norfolk : 
Respectfully represents, A. B., of Cohasset, in said county of Norfolk, con- 
stable of said Cohasset, that on the first day of June, in the year of our Lord, 
eighteen hundred and seventy, he seized a certain salmon-pot, the diameter of 
which is more than two feet, and the value of which is more than $20, in the 
waters of a certain stream situate in said county of Norfolk, and known as 
Salt River, where the same was at that time unlawfully used by one C. D., 
of said Cohasset, as your petitioner is informed and believes, and being 
the property of said C. D., as your petitioner is further informed and believes, 
and now, therefore, your petitioner prays that a decree of forfeiture of said 
salmon-pot may issue out of this honorable court, according to the twenty- 
third section of the three hundred and eighty-fourth chapter of the acts of the 
year eighteen hundred and sixty-nine, entitled " An Act for encouraging the 
Cultivation of Useful Fishes." 

And your petitioner will ever pray. 

(Signed) A. B. 

N. B. If the libel is brought in the superior court, according to 
the above form, the value of the goods libelled must be more than 
twenty dollars according to the appraisement provided for in sec- 
tions 18, 19, and 20 of chapter 153 of the General Statutes. The 



54 RIVER FISHERIES. [Jan. 

report of such appraisement should be filed with the papers in the 
case. If the goods are appraised under twenty dollars, the libel 
must be brought before a justice of the peace, or in a municipal, or 
police court. Upon filing the libel, the constable, or other party, 
must by statute, advertise twice in some newspaper printed in the 
county, the later advertisement being at least fourteen days before 
the hearing on the libel, that the offender must show cause why the 
tackle, etc., should not be forfeited according to the decree of the 
court. The form should be something like the following : — 

To C. D., of Cohasset, in the county of Norfolk, and to any and all other 
persons interested in certain fishing tackle, to wit, one salmon-pot, seized by 
me this day in the waters of Salt River, in said Cohasset, where the same 
was unlawfully used by said C. D., the value of which, in the opinion of a 
certain appraiser appointed by the court, exceeds twenty dollars. 

You are hereby required to appear before the justices of our Superior 
Court, next to be holden at Dedham, within and for our said county of Nor- 
folk, on the second Tuesday of September next, to answer to the complaint 
against said salmon-pot, and for trial and to show cause, if any you have, 
why a decree of forfeiture should not be entered in said Court against said 
salmon-pot, the same having been used by said C. D. in violation of the laws 
of this Commonwealth. 

(Signed) A. B. 

[Chap. 64.] 
An Act concerning Fisheries in Bass River in the County of Barnstable. 
Be it enacted, ^-c, as follows: 

Sect. 1. The provisions of chapter one hundred and seventy- 
nine of the acts of the year eighteen hundred and sixty-eight, shall 
not apply to the lessees of the the towns of Yai-mouth and Dennis, 
while fishing for perch or alewives in Bass River or its tributaries. 

Sect. 2. This act shall take effect upon its passage. [Approved 
March 10 1869. 

[Chap. 76.] 
An Act to extend the provisions of the Act of the year eighteen hundred and sixty- 
eight to regulate fishing in Connecticut River. 
Be it enacted, ^'C, as follows : 

Sect. 1. Any person who shall take, or aid or assist in taking, 
from the Connecticut River, any shad at any other time than be- 
tween the fifteenth day of March and the fifteenth day of June in 
each year, shall forfeit and pay for each offence the sum of one 
hundred dollars ; and any person who shall take, or aid or assist in 
taking, from the Connecticut River, any salmon before the fifteenth 
day of March, in the year one thousand eight hundred and seventy- 
two, shall forfeit and pay for each offence the sum of fifty dollars. 



1870.] SENATE— No. 12. 55 

Sect. 2. Nothing in this act contained shall apply to the taking 
of any fish by order of the fish commissioners, for the purpose of 
the natural or artificial propagation of the same. 

Sect. 3. No person shall set or draw, or shall assist or aid in 
setting or drawing, any net or seine for the purpose of taking fish 
in Connecticut River, at any time between the setting of the sun 
on Saturday evening of each week and the rising of the sun on the 
succeeding Monday morning ; and the owners of all weirs, pounds 
and set-nets of any description, placed in the waters of said river, 
shall cause the same to be and remain open and free for the passage 
of fish during the said period in each week, in such manner as to 
satisfy the fish commissioners. And every person trho shall violate 
the provisions of this section, and every person owning or control- 
ling, in whole or in part, any pound or weir, and failing to comply 
with the requirements of this section, shall forfeit and pay the sum 
of four hundred dollars to the treasurer of the state for each 
offence ; and any person setting or using, or aiding or assisting in 
setting or using, any pound, weir, or set-net in said river, between 
the fifteenth day of March and the fifteenth day of June in each 
year, the meshes whereof are less than five inches in extent, shall 
also forfeit and pay the sum of four hundred dollars for each offence, 
and such pounds, weirs and set-nets shall be forfeited to the Com- 
monwealth. 

Sect. 4. The mayor and aldermen of any city and the selectmen 
of any town bordering on the Connecticut River, shall appoint and 
fix the compensation of one or more suitable persons as fish wardens 
within their respective cities and towns, who shall make complaint 
of all offences under this act. 

Sect. 5. Chapter one hundred and thirty of the acts of the 
year eighteen hundred and sixty-eight is hereby repealed. [Ap- 
proved March 17, 1869. 

[Chap. 172.] 

An Act to regulate the Oyster Fisheries and the Seining of Fish in Cole's River and 

Lee's River in Swansea. 

Sect. 9. No person shall set, draw or use any seine, net or 
weir for taking fish, except menhaden, in Cole's River, within the 
limits of the town of Swansea, nor in Lee's River, within the limits 
of the towns of Swansea and Somerset. Whoever violates the 
provisions of this section shall pay a fine of not less than fifteen 
dollars nor more than fifty dollars. 

Sect. 10. This act shall take effect upon its passage. \^A2:)p7'oved 
April 17, 1869. 



56 RIVER FISHERIES. [Jan. 

[Chap. 235.] 

An Act for the protection of Trout in Avery Brook, in the towns of Charlemont and 

Heath. 
Be it enacted, cfc, as follows: 

Sect. 1. Whoever, without a written license from the owners 
or lessees of Avery Brook or its tributaries, takes any trout there- 
from, within the limits of either of the towns of Charlemont or 
Heath, shall forfeit and pay a fine of twenty-five dollars for every 
such ofience, to be recovered before any trial justice, or in any court 
of record in the county of Franklin. 

Sect. 2. The foregoing section shall be without effect unless the 
owners or lessees aforesaid shall erect and maintain notices of this 
act and its penalties, j^ainted or engraved in clear, legible letters ; 
said notices to be erected within one hundred rods of each other 
throughout the entire length of said brook and its tributaries, and 
on or near the banks thereof, within the boundaries of the aforesaid 
towns. 

Sect. 3. Whoever destroys, injures or defaces any such notices 
so erected, shall forfeit and pay for every such offence a fine of 
twenty-five dollars, to be recovered in the same manner as provided 
in section one in this act. [^A2y2^roved May 6, 1869. 

[Chap. 422.] 
An Act in addition to an Act concerning the Obstructions to the Passage of Fish in 

Connecticut and Merrimack Rivers. 
Be it enacted^ <fc., as follows : 

Sect. 1. Whenever any proprietor of any dam in Massachusetts, 
upon the Merrimack or Connecticut Rivers, shaU have refused or 
neglected for the period of thirty days from the time when the 
commissioners of fisheries shall have furnished such proprietors with 
the plan specified in sections three, four and five of chapter two 
hundred and thirty-eight of the acts of the year eighteen hundred 
and sixty-six, to agree with said commissioners for the building on, 
over or around his dam of the fishway prescribed by the plan fur- 
nished such proprietors by said commissioners, then said commis- 
sioners, or the survivors or survivor of them, or their successors or 
successor, may file in the supreme judicial court a bill in equity, in 
their name but in behalf of said Commonwealth, asking for a decree 
to enforce the immediate construction and erection of such fishway 
as is called for by the plan so furnished, to the acceptance of said 
commissioners, and for such further and other relief as they may 
deem necessary to enable them to enforce the provisions of said 
chapter two hundred and thirty-eight. 

Sect. 2. Such proceeding, whether by bill to enforce specific 



1870.] SENATE— No. 12. 57 

performance or by suit at law, as is provided in section seven of 
said chapter two hundred and thirty-eight, for money expended, 
shall be brought in the supreme judicial court ; may be made re- 
turnable in the county of Suffolk, and shall have jDrecedence upon 
the docket and priority in all its stages over suits depending between 
private parties. \_ApprovedJune 21, 1869. 

Attention is called to the following important Act of the Con- 
necticut Assembly, abolishing pounds after 1871 : — 

An Act relating to Fisheries. 
Be it enacted by the Senate and House of Representatives, in General Assembly convened: 

Sect. 1. That fi-om and after the end of the year 1868 it shall 
be unlaTvful for any person to erect or construct in the waters 
along the northerly shores of Long Island Sound in this state, any 
weir or pound for taking shad or white-fish, within seventy rods 
of the place where any other weir or pound belonging to other 
persons has been erected, used and continued during the fishing 
seasons for a period of ten years or more last past : promded^ that 
the prohibition of this act shall not extend to or affect any persons, 
company or association, their successors or assigns, who may have 
had, used and continued during the seasons for fishing for a period 
of not less than five years at any time during the last ten years, 
such pounds or weii's within a nearer distance from such older 
established and located pounds and weirs, and every person attempt- 
ing or intending to violate the provisions of this act shall be liable 
to be restrained by injunction, and also to pay to the person or 
persons so injured all the damage which they shall have sustained, 
in a proper action instituted for that purpose, which may be brought 
and maintained in the county in which either or any of the parties 
may reside. 

Sect. 2. That from and after the end of the year 1871 it shall 
be unlawful for any person to erect, construct or continue in the 
waters along the northerly shore of Long Island Sound in -this 
state, any weir or pound for taking of fish. 

Sect. 3. All acts and parts of acts inconsistent herewith are 
hereby repealed. {^Apjyt^oved July 31, 1868. 



68 RIVER FISHERIES. [Jan. 



[D.] 

ON THE LIMITS OF ARTIFICIAL CULTURE, AND THE POSSIBLE EX- 
HAUSTION OF SEA FISHERIES. 

Although sea fisheries do not come within the field of this 
report, their relation to those inland is such as to demand a 
moment's consideration. Since artificial fish-culture has come up 
in Europe, and has been supported by the French government, by 
the Societe d' acclimatisation, and by men like Coste, Lacoin and 
Vidal, it has gained a certain power and influence, especially in 
France, where attempts have been made to cultivate not only fresh 
water fishes, but also oysters, craw-fish, lobsters, and certain of the 
brackish water fishes, such as the Bar {Ldbrax lupiis)^ which cor- 
responds somewhat to our striped bass. In this pursuit the culti- 
vators have laid hands on certain tidal flats hitherto looked on as 
common property by the fishermen. Such conduct has of course 
provoked opposition, and various wiiters have come out against the 
system. Notable among them is J. B. A. Rimbaud, foiTuerly sec- 
retary of the prucVhommes pecheurs* of Marseilles. With the 
true proven9al fire, this champion draws his sword against all mon- 
opolies of the coast-line, and against M. Coste's pet experiments, 
under the name of " C^znatural water-culture." t Rimbaud is a for- 
midable opponent ; although not a zoologist, he is a fisherman, and 
knows a fish perfectly well when he sees it. Moreover, he knows 
the literature of his subject, and its history. "What does your 
pisciculture amount to ? (he asks in substance.) Compared with 
the sea, your pools and brooks produce nothing. You do not raise 
enough fish in all France to feed a town, and every fish you raise 
costs more than it will bring. You yourselves acknowledge that 
pisciculture has generally failed, but you make excuses for the fail- 
ure which are not excuses. The real cause is in the impractica- 
bility of the thing. And yet you come with your great pretensions 

* The p7-«</7iom?nes j9ec^CMrs or Fishery Selectmen are a board of judged chosen by 
the tishermen themselves, and have power to settle all cases within certain limits. They 
hold court usually every Sunday, and sit in their common sailor clothes. No advocates 
are allowed. Each party states his case, and the selectmen then render judgment. If 
the decision be against the defendant, the chief rises and says to him, "Z/r Jei vou 
coundano.^' (The law condemns you.) The accused pays the fine, and the whole affair 
is settled. The costs of the court are tioo cents each for plaintiff and defendant, which go 
into St. Peter's box to pay for the support of a lighthouse. This ancient usage dates back 
bej'ond the middle ages. Is our system of minor courts an improvement? 

t LTndustrie des Eaux Salens, 1869. 



1870.] SENATE— No. 12. 59 

and seize inlets and estuaries to make oyster parks and mullet 
ponds. What is the consequence ? your oysters and mullets, over- 
fed, cease to breed, and you constantly decrease instead of increas- 
ing the supply. The method itself is unnatural, and a little thing 
will destroy your whole crop. You talk of the Roman fish-ponds. 
They were the contrivances of monopolist gluttons, when Rome 
was rotten with luxury ; no poor man ever was helped by them ! 
No ! These are pretty playthings for M. M. Coste and Lacoin, with 
their little troughs and pans ; but as to being producers of food, it 
is nonsense ! " Now there is a great deal of truth in all this. 
France is a country ill adapted to fresh water pisciculture. The 
streams, especially in the south, are torrential in their character, 
very turbid and full in the wet season, and reduced comparatively 
to a pebble bed in the dry months ; such are the Rhone, the Loire, 
the Garonne and others. Then there is a striking want of large 
lakes, and of abundant cold springs. The absence, too, of great 
and old forests about the water-courses is a serious difficulty. 
Finally, the French are not a " sporting " people, like the English 
and Americans, who are often almost monomaniacs about fish and 
game. Therefore it is that their attempts with salmon and white 
fish have had small success. Their system of oyster culture, too, 
has brought unexpected troubles to light. These oysters, placed in 
very shallow pools or beds of brackish water, were carefully fed and 
tended by persons who walked about on the little dams that sepa- 
rated the nurseries. Thus nourished, they waxed fat, and the 
profits were at first large. But it would seem that these gross 
molluscs produced no " spat," so that the owners were obliged con- 
stantly to rake new seed from the ocean beds, and thus they preyed 
on the original stock without returning any increase. During the 
present year, however, came theii* great calamity. There was some 
very hot weather ; the shallow water of the beds rose to a high 
temperature, and at the celebrated He de Re and other places, 
whole crops of oysters were killed. In a northern climate the same 
destruction would regularly occur from frost. 

The plan of confining mullets and sea-bass in coves or estuaries 
seems hardly likely to pay the cost. If they are fed, the food 
comes to more than the mullet ; if they are not fed, it is more 
profitable to take them in the common way from the ocean. But 
pisciculture in the wrong way and place, is not pisciculture in the 
right way and place. In a country like our own, full of good ponds 
and trout streams, these waters once restocked will take care of 
themselves, and will continue prolific, if they are not overfished. 
Therefore it is that laws are passed giving owners the power to 



60 RIVER FISHERIES. [Jan. 

protect such waters, or, in otlier words, to prevent overfishing. As 
to oysters, the method pursued on Cape Cod is doubtless much 
better than the European. In suitable places, where there are 
shallows protected from heavy waves, and where some stream gives 
a certain admixture of fresh water, the seed oysters are planted. 
These are got from the heads of the bays where the water is so 
fresh that they never attain much size or flavor. Thus planted 
they grow rapidly and spawn freely, making a permanent bed. 
Like all other things, they are, nevertheless, uncertain. Sometimes 
a gale covers them with mud or gravel ; sometimes the beds are 
invaded by the whelk (Pyrula) and other boring molluscs, who. 
play the part of the lawyer with the two litigants in La Fontaine's 
fable. Nor are misfortunes wanting that are wholly unlooked for. 
Thus, during the last season, in June, the New York oystermen, 
confidently raking for their harvest, brought up to their horror only 
bushel upon bushel of ground shells ! The depredators were an 
army of drum-fish (Pogojiias) advancing from the south. They 
systematically moved over the plantations, grinding up the natives 
with their strong throat-plates. 

As to the confining of sea fishes to be fattened for market we do 
not attempt it, nor would it be profitable unless the product of the 
sea were nearly a failure ; and this brings us to the important 
question on the possible exhaustion of sea fisheries. 

In a former report (for 1867, p. 8,) a reference was made to a 
notable report of the English Commissioners,"^ whose conclusions 
are expressed in the following emphatic words : " Notwithstanding 
the most careful inquiries specially directed to the point, we have 
been unable to meet with any case in which we were satisfied that 
sweep-net fishing, fishing with small meshed nets, or weirs, in bays or 
estuaries, has been permanently injurious to the supply of fish ; while 
on the other hand, it is proved that, in certain bays and estuaries, 
such fishing has gone on for very many years without permanent 
injury to their fisheries " (vol. 1, p. 106.) That is to say, no matter 
how or when you fish in salt water, the harvest will be just as good. 
Against these commissioners and their conclusions M. Rimbaud 
rises in wrath, and is seconded by Sabin Berthelot,t an old naval 
ofiicer, an experienced fisherman, and one of the authors of the 
Natural History of the Canaries. Two such competent critics seldom 
approach a subject. Their only weak point is, that their famiharity 
lies rather with the fishes of the Mediterranean and the warm 

* Report of the Commissioners appointed to inquire into the Sea Fisheries of the United 
Kingdom, 1865, 2 vols., about 1,600 pages, 
t l^tudes our les peches maratimes 1868. 



1870.] SENATE— No. 12. 61 

Atlantic than with those of the Irish Sea and German Ocean. "With 
their criticisms, the report of the English Commissioners, and such 
arguments as may be added, we may hope to get some view of the 
difficulties of the subject, if not of the subject itself. How, in the 
first place, were their conclusions come at; on what evidence do 
they rest ? It would appear that the Commissioners went to var- 
ious sea-ports, called the fishermen about them, and took their 
evidence. They thus visited nearly ninety places, and asked about 
62,000 questions, all of which, with the answers, are duly printed. 
This enormous oral investigation is the heart of the whole affair. 
But, objects Kimbaud, this is no way to investigate a subject ! 
Would you. Professor Huxley, study the actinoid polyps by running 
about and asking Milne Edwards and Dana what they thought 
about them ? Would you not take your microscope to the seaside 
and look with your own eyes ? This want of personal observation 
is seen at each turn. Thus (p. 20,) when considering whether the 
beam-trawl does or does not destroy spawn and mangle the fish, 
they enter into long arguments based on evidence, and on the speci- 
fic gravity and structure of the beam-trawl, to show that there was 
no such damage. Could one of them have said, " I saw this done," 
it would have been of real value.* And now, what is the nature of 
the testimony brought out by these 62,000 questions ? Let the re- 
port answer (p. 17.) "As these complaints have usually been 
brought by one class of fishermen against others, who rightly or 
wrongly conceived themselves to be unjustly injured in their most 
important interests ; and, as they have been rebutted by persons 
whose means of living largely, or wholly, depend on their power to 
continue the alleged wrongful practices, it will not be a matter of 
astonishment that the evidence, so far as it records merely personal 
convictions, and assertions that can be neither proved nor disproved, 
is of the most conflicting character. But fishermen, as a class, are 
exceedingly unobservant of anything about fish which is not abso- 
lutely forced upon them by their daily avocations," &c., &c. That 
is to say, this report is chiefly based on oral evidence ; most of such 
evidence is by fishermen ; and, fishermen as a class, are not only 
grossly ignorant, but have every temptation to pervert the truth, 
and to Ml into stupid mistakes ! Such is the method of investiga- 
tion ; and, what is the exact matter to be investigated ? It is the 

* To show how these gentlemen allowed themselves to be deceived bv witnesses whom 
they knew had temptation to prevaricate, they state (p. 19, ) that were it not for the 
trawl there loould be no turbot or soles ! As a fact, in many places these fishes are ex- 
dusively taken with hook and line. See Dictionnaire generale des peches, art. Sole and 
Turbot; also see Report of the Commission, question 5,683. 



62 RIVER FISHERIES. [Jan. 

following question : Can (1) the same number of men, (2) in the 
same time, (3) on the same ground, (4) with the same gear, catch 
(5) the same number offish, Jioio as they coxAdi formerly ? Here is 
a proposition with five variables, and the wrong solution of any one 
will greatly affect, and may wholly destroy the proposition. 

(1.) The numher of men. In Great Britain they have a tolerable 
idea of the number of men employed in the fisheries ; and, in 
France, owing to the marine inscription, the knowledge is very ac- 
curate. (2.) The time occupied. Of course, a large average must 
be taken to arrive at this variable. Thus, could it be proved that, 
for a long series of years, herring boats had got their full fiires in 
half a night, while, duiing another series of years, it had required 
the whole night, the deduction would be that the fisheiy had failed. 
Here is a point about which good testimony is next to impossible. 
(3.) O/i the sam^ ground. There is a good chance for reUable in- 
formation in this matter, because certain coasts or banks have been 
fished for many generations. (4.) THYA the same gear. This vari- 
able is variable ijideed. ^Vho can tell, for a whole country, the 
exact changes, during some generations, in the number and tonnage 
of the craft, the depth, length, mesh, number and kind of the nets, 
or the manner of setting them ; the nimiber of single lines, and of 
"trawl" or "long lines," &c., etc. ? (5.) The quantity of fish 
taken. What the Royal Commission would reply to No. 5 may be 
taken from their own report (p. 10.) "With the exception of the 
statistics of the northern herring fishery, there are no means of 
ascertaining, even approximately, the annual jield of fish on the 
coasts of the United Kingdom." They then give returns, " con- 
fessedly incomplete," of the amount of fish carried on certain rail- 
roads ; and fmther, they show the increased quantities thi-own on 
certain commercial centres, like London. But what logic is this ? 
There are increased quantities of grouse thrown on the markets of 
New York and Boston, but the grouse themselves rapidly decrease. 
Again, of these increased quantities what proportion is British 
fish, and what part is furnished by foreign boats ? So long 
as a Commission does not use its own eyes, and is in ignorance of 
the statistics of fishing-tackle, time occupied, and amount of fish 
taken, at the present and at former periods throughout Great Britain, 
and is driven to depend on the evidence of men, some of whom 
mio-ht be reduced to want if they told the ti-uth, the public will be 
excusable for taking its conclusions with caution. There is yet 
another eiTor forcibly pointed out and illustrated by Rimbaud : an 
error which so able a man as Huxley would hardly have fallen into, 
had he apphed the usual methods of original research ; and that 



1870.] SENATE— Xo. 12. 63 

is the confounding under the common name " fish " of all of that 
vertebrate class taken by fishemien. Rimbaud, on the contrary, shows 
that a classification of fishes, is needed, and that each division must 
be considered separately — a classification founded not on anatomi- 
cal characters, but on habits and locality. It is indeed, not a nat- 
uralist's but a fisherman's classification, and one that is recognized 
in the markets of South France. The divisions are four: (1) Wan- 
dering fishes (Poisson nomade) ; (2) White fishes (Poisson hlanc) ; 
(3) Bottom fishes (Poisson cle roche ; or, Poisson de fond) ; (4) 
alien, or outside fishes (Poisson forain). The difference chiefly to 
be borne in mind is this : that whereas the wandering fishes (herrings, 
sardines, &c.) appear on the coasts only when "migrating," and then 
in vast, but uncertain troops, the white (bass, mullet, &c.) and bot- 
tom (sole, sea-perch, &c.) fishes, especially the latter, are essentially 
domestic, and dwell and multiply on particular localities along the 
coast. We need hardly consider the fourth division, which includes 
chiefly rays and dog-fish, both of which are used for food in France, 
but not in this country. The White fishes are all swift swimmers, 
whether they frequent the lower or the middle water, or the surface. 
In winter they retreat to great depths, ofi" the coasts ; but, as the 
warm weather approaches, they near the land, and rove hither and 
thither, attracted by the currents or driven by predatory enemies. 
The Bottom fishes live on or near the bottom, and in comparatively 
shallow water ; some frequent the kelpy rocks, like the sea-perches ; 
others He on muddy bottoms, such as the turbot and the sole ; but 
all remain on their grounds the year round, and the colder it is, 
the more they hug the shore. Now, both Rimbaud and Ber- 
thelot insist that White and Bottom fishes may, from their very 
localization^ be exhausted by improper fishing ; whereas, the Wan- 
dering fishes, numerous by nature, and protected from attack by 
their uncertain movements, and their total disappearance for certain 
seasons, are, in favorable zones, not to be diminished by human 
means ; and they further insist, with entire truth, that the British 
commissioners have not discriminated between these divisions, but, 
by confounding them, have vitiated their whole reasoning. Bringing 
facts to support his theory, Rimbaud cites a list- of species (p. 97) 
which, Tvithin his own memory, have disappeared fi'om, or much 
diminished in, the Gulf of Marseilles ; and he cites the continued 
abundance of fish in Corsica and on the AMcan coast, where the 
beam-trawl * is not used. If we follow up his calculations (p. 284 ; 

* The so-called trawl, of which there are several varieties, is essentially a verj' lontj 
bag-net, with a wide mouth held open by a frame or other contrivance, and with net 
wings on either side of the mouth. This is dragged along the bottom, by the boat under 



64 RIVER FISHERIES. [Jan. 

Berthclot, page 297) we shall see that each great trawl, supposing its 
track to be fifty feet wide, will annually scrape 25,000 acres of sea- 
bottom. 

Berthelot devotes a large part of his book to a critical comparison 
of the fisheries on the Mediterranean coast of France in 1842 and 
in 1862. On both these occasions he made an official examination 
of a marine district with which he had been fimiliar from boyhood. 
His testimony as to the decrease of these fisheries is emphatic. 
Some classes of fishermen, like the palangriers of Marseilles, had 
abandoned their trade and left the country. This singular little 
colony was an emigration of Spanish Catalans, who came over in 
1721, and remained near the city for over a century. Of all 
people, the Catalans are, perhaps, the most expert and daring 
fishermen, and they are specially noted for their skill with the 
palangre (called long-line in England and trawl-line in America), 
a long cord to which are attached, at regular intervals, short 
gangeings, each bearing a baited hook. This palangre is paid out 
and sunk on the sea bottom, the ends being marked by buoys. For 
many years, the Catalans drove a profitable trade ; but the fish 
gradually got scarcer, after trawling was introduced, and the colonists 
at last left in a body for Spain. The Catalans were also great steel 
workers, and introduced those hooks of soft white iron which the 
French palangriers still use on the banks of Newfoundland. This 
hook, instead of being pushed back through the lip of the fish, is 

sail, and every kin'd of marine animal and plant, with stones, rubbish, and even ships' 
anchors ( ! ) are tumbled into it in one confused mass. The British commissioners state 
(from an a pr-iori view) that the trawl cannot well scrape spawn off the bottom ; but the 
very name in French (Eissaugue) signifies seaweed-hoisier, and with the seaweed comes 
the spawn. Another sort is le petit ganguy, which is drawn either by two boats running 
before the wind, at about three knots (peche aux boeufs), or by a single boat, which often 
makes fast the hauliug-lines fore and aft, and then takes what the mackerelers call "a side 
drift" (j)eche a la vache). Not all the other nets and lines put together have caused as 
much quarrelling, and even bloodshed, as these trawls. The line fishermen and seiners 
accuse them of so scraping and re-scraping the breeding-beds as to destroy vast quan- 
tities of spawn and young fry, and eventually to diminish certain species ; and, moreover, 
charge that they carry away nets, lines and buoys in their constant journeyings. In Gal- 
way (where Her Majesty's subjects are not so docile as they might be) the common fish- 
ermen rose against the trawlers, and in such terror were these last, that they dared not 
publicly testify before the Commission. Captain Atwood informs us that a trawl was 
tried in Massachusetts Bay; but the Irish set-hookmen (trawl-lines so-called here) would 
not allow it used. In France, laws have been passed, over and over, against them ; and 
the same is true of some parts of Spain. There must be some foundation for such violent 
denunciation. The British Commission imply that this denunciation is simply that which 
always rises against improved machinery. On the other hand, Rimbaud and Berthelot 
say it is well founded, and that these engines really do kill out the White and Bottom 
fishes. The trawlers persuaded the Commission that the market could not be supplied 
without their aid ; but, certainly, few countries are better supplied with various and fine 
fishes than the United States, where no trawl is used. 



1870.] 



SENATE— No. 12. 



65 



pulled straight out, and isjthen again bent in a >urve by a simple 
contrivance carriedjin each boat. In every port/Berthelot found a 
decline in most of the fisheries which had formerly been of great 
importance, and, in each case, the complaint was of the grand art — 
that is, the great trawl, worked by two sail boats. He cites an im- 
portant body of statistics, fi'om the Province of Cadiz, Sanlucar 
Huelva and Malaga, in Spain (p. 293). 





Kilogrammes [op Fish.* 


Number of Men, 
1861. 


Kilogrammes per 




1831. 


1861. 


Man, 
1861. 


Cadiz, 


1,095,225 


2,342,137 


1,749 


1,337 


Sanlucar, . 


450,237 


1,070,050 


760 


1,408 


Huelva, 


896,475 


2,818,525 


2,069 


1,360 


Malaga, 


660,925 


7,778,162 


3,415 


2,277 


Totals, . 


3,102,862 


14,008,874 


7,993 


- 



In comparing these figures we see, that in 1861, Malaga caught 
less than any, except Sanlucar; but in 1861 she took more than the 
other three together. Further, Malaga took fifty per cent, more fish 
to each man than did the others. What is the difference in the 
condition ? On the Malaga coast, fishing with the great trawl-net 
{aux hoeufs) has been prohibited since 1828, while in the three 
other departments it has been allowed^ and much practised. Berthe- 
lot further proves that trawl-net fishing makes fewer and poorer 
sailors than any other method — a matter of great importance to 
France, where seamen are always too few. However removed 
from absolute accuracy they may be, these statistics and these 
criticisms certainly seem more the work of masters of the subject 
than the conclusions of the British Commission. It is true, we 
must bear in mind the difference of the marine faunae in the Medi- 
terranean and in the German Ocean, and the different conditions of 
animal life. Nevertheless, there are some general principles which 
must guide the investigation in both cases. Thus, Rimbaud says 
with great force, that so long as he knows that fishermen have to 
go farther and farther, and fish more and more carefully, for their 
fare, nothing will persuade him (or the fishermen !) that fish are as 

* A kilogramme is about two pounds. The total catch of 1861, then, would be over 
14,000 tons, though this is not more than one-sixth the weight of fish sent annually to 
the London market. 



66 RIVER FISHERIES. [Jan- 

plenty as formerly. Perhaps the most reliable part of the British 
testimony is that which sets forth the immense increase in the men 
and boats (except Irish) employed ; and in the size and destructive 
effect of the nets. It also indicates the exertions of all the men to 
bring in everything taken. Whereas they often used to throw half 
a fare overboard, now they bring in every minnow (p. 14). And 
yet, with all this saving and this increase of means, it does not 
appear (if one may judge from the imperfect statistics) that the 
augmentation of product is in any proportion to the augmentation 
of labor and engines. On the other hand, it is admitted that the 
price of fish has advanced (p. 14) somewhat in the interior, and 
has doubled on the seacoast. But then, not advanced so much as 
that of butcher's meat. And why has butcher's meat grown dearer ? 
Dr. Gamgee will tell us, it is from the scarcity of cattle ; and so the 
advance in fish may be from the scarcity of fish. Of course the 
testimony is, as the royal commissioners very frankly tell us, en- 
tirely conflicting. Sometimes, however, a person of neutral position 
makes some very precise statements ; as when a clergyman (ques- 
tion 5688) testifies that a certain extensive fishing ground was 
swept uttery clean of fish by the trawlers. Here was a true case 
of the destruction of the poisson blanc and the poissoyi de fond. 
Even the Wandering fishes are held by some authorities to have 
been reduced by improper fishing. Thus Bertram, in his Harvest 
of the Sea (p. 278), shows that, in the great Wick herring fishery, 
the extent of nets has much increased, while the catch per boat has 
•diminished. This may or may not show a general scarcity of fish. 
On our own coast we are familiar with the singular variation in the 
mackerel fishery, and in that of menhaden (Alosa menhaden). At 
times our bays will be crowded with their vast schools — suddenly 
they fly in a panic : the blue-fish ( Temnodon saltator) are among 
them, and within twenty-four hours not a mackerel or menhaden is 
to be seen. This is not scarcity, but absence. When mackerel are 
away, the little lobsters do play, and they increase in numbers ; and 
their present abundance is a true abundance, resulting from the 
absence of their enimies. The Europern herring * ( Clupea har- 
rengus) is known to be eccentric in its movements : sometimes the 
-Scotch variety will strike across to Scandinavia, while those of that 

•* The herrings, according to Mr. Boeck, are by no means great wanderers as a rule. 
They dwell in the deep submarine valleys, usually not more than seven miles from the 
Norwegian coast, and approach the shore to spawn. They discharge their ova in from 
10 to 150 fathoms (usually in 100). On the European shores they are found from the 
47th to the 67th parallel, but they quit water which is below 40° Fahrenheit. See J. L. 
Soubeiran; L'Exposition de Produits et Engins de peche a Bergen, 1866, p. 68. 



1870.] SENATE— No. 12. 67 

coast will appear at points further north. Yet on the whole, we 
may say that the herring harvest has always been an abundant one, 
whether in the historic Dutch times, or in these days of the Scotch 
and Norwegians. In 1603, the Dutch herring crop, besides what 
they themselves consumed, sold for nearly £5,000,000. The annual 
cure of Scotch herring is over 3,000,000 barrels. The winter 
fishery of Norway gives over 700,000. 

So, too, the cod fishery seems unfailing on the chief grounds, 
such as the Grand Bank and the celebrated Vestfjord. The lat- 
ter has been closely fi^shed for centuries with no diminution in the 
yield.* 

As to the general and vital question of exhausting fisheries, we 
stated at the outset that we might hope to get an idea " of the 
difficulties of the subject, if not of the subject itself." And, while 
we cannot say that either party to the discussion has proved any- 
thing, the points indicated are the following: 1. That no amount 
or kind of fishing can diminish the "schooling" or Wandering 
fishes of the high seas, such as the herring {Clupea elongata)^ 
mackerel {Scomber vernalis)^ menhaden (Alosa menhaden), cod 
(Morrhua Americana), &g. 2. That the local and bottom fishes, 
which are peculiar to certain limited areas near the shore, may 
be greatly reduced, or even practically annihilated, in certain places, 
by improper fishing. Such are the tautog ( Taxitoga Americana)^ 
the sea-perch {Ctenolahms caemleiis), the flounder {JPlatessa 
plana), the striped bass {Ldbrax lineatus), and the scup {Sparua 
argyrops), &c. What "improper fishing" is, and what particu- 
lar species are most easily killed out by it, remain to be seen. It is 
sufficient to remark that our shore population is beginning to com- 
plain of a diminution in many species ; and it behoves the govern- 
ment to collect such statistics as will suggest an intelligent action 
to the legislature. 

* The Yestfjord lies between the Loffoten Islands and the mainland of Norway. The 
cod, seeking protection and the warm water of the Gulf Stream for their spawn, stand 
in during February in countless troops. The fishermen absolutely cast the lead to find 
the school by its striking the backs of the fish ! The annual cure of codfish in Norway is 
about 19,000 tons, chiefly from the Lofibten Islands (Soubeiran, p. 50). 



SENATE No. 11, 



Fifth An^n^ual Report 



COMMISSIONERS 



INLAND FISHEEIES, 



January, 1871. 



BOSTON: 

WRIGHT & POTTER, STATE PRINTERS, 
79 Milk Street (corner of Federal). 

1871. 



\ 



<irommonu)£altl) of ilTa00ai:l)U0ett0. 



REPORT 



The Commissioners on Inland Fisheries, under chapter 384 
of the Acts of 1869, beg leave respectfully to present their Fifth 
Annual Report. 

FISHWAT3. 

(1.) At Holyoke. — The case of the Commonwealth versus The 
Holyoke Water Power Company, has been recently decided in 
favor of the complainants by the supreme court. A great 
variety of argument was brought to bear, especially on the part 
of the respondents, but the central point may be thus set forth. 
1. Dam owners are required by common law to maintain fish- 
ways. 2. The Holyoke Company was required, by its charter, 
to pay for the fish rights injured above its dam ; and, therefore, 
the company claimed by implication an exemption from a fish- 
way. 3. But, in chartered rights, the presumption is against 
the grantees, and nothing is held by them which is not expressly 
granted. 4. Therefore no implication can free the company 
from the common-law obligation to build a fishway. This de- 
cision, if confirmed by the United States supreme court, to 
which the case has been appealed, will save the State an outlay 
of at least 825,000. For several years, and against much doubt 
and discouragement, the Commissioners have held that this com- 
pany was sheltering itself behind an erroneous construction of 
its charter ; and now our highest judicial tribunal has con- 
firmed this opinion.* It is but fair to add that the Turner's 
Falls Company, the next great dam on the river above, has 
shown an excellent spirit, and has offered to put up a suitable 

fishway, even in advance of the requirements of the law. 

/ 

* Sea Appendix D. 



4 INLAND FISHERIES. [Jan. 

(2.) At Lawrence. — The top hamper of this way has been 
again remodelled, and the flow of water has at last been made 
almost perfect. It has also been made so strong as to resist 
any ordinary violence. 

(3.) On Smaller Streams. — Fishways have been finished on 
the Weweantit and Herring (Harwich) rivers, except in the 
cases of two delinquents, against whom proceedings are begun. 
At Kingston an excellent one has been put up by Mr. Drew, the 
mill owner. The upper fish way at Middleborough has been so 
modified as freely to admit alewives to their extensive spawning 
grounds. The passes on Mystic River and ponds are now of 
the most approved forms, and their success is all that could be 
desired. It is estimated that at least $2,000 worth of alewives 
passed Whitney's dam this season. Some steps, also, have been 
taken to open Neponset and Shawsheen rivers. In general it 
may be said that the mill owners have modified their views a 
great deal since they have seen how little water is used by the 
improved fishway, and that too chiefly in flood times Many 
persons who feared their water-power would be impaired now 
are strong advocates for fish culture. 

Fish Culture. 

(1.) Of the Alewife (^Alosa tyrannus). — Increasing atten- 
tion is everywhere given to this little fish, and the ease of its 
culture, together with its abundant yield, encourage the further 
improvement of the fisheries. 

(2.) Of the Shad {Alosa praestabilis}. — Mr. James Rankin, 
lately Commissioner of Connecticut, hatched shad during the 
past season at Hadley Falls, using the apparatus of this Com- 
monwealth, and by the permission of its Commissioners. He 
had entire success and turned loose, by estimate, over 60,000,000 
of embryos. The season was remarkable for the great take of 
fish in the river, which was the more striking because of the 
gradual decrease of the fishery for many years. On Sunday, 
May 21, vessels in Long Island Sound observed the unusual 
spectacle of vast shoals of shad. The next day they struck in, 
at and about the mouth of the river, and filled tlie nets. At 
Lincoln, ten miles from the mouth and on the coast, 3,560 fish 
were taken in one pound (5Q0 is usually a large catch), and 
the total yield of the pounds fondiat day was over 25,000. At 



1871.] SENATE— No. 11. 5 

Haddam Island, a short distance up the river, 700 were taken 
at one sweep of the seine, which is more than one-third the yield 
of a similar seine for the ivhole of the previous season. A seine 
four miles below Hartford took 900 shad the same day. As this 
is some fifty miles up the river, it is plain that the schools 
struck in all at once, and that those which headed for the stream 
kept on with great rapidity. Now it does not appear that on 
the Hudson, to the west, or on the Merrimack, to tlie east, the 
run of shad was unusual ; on the contrary, both those rivers re- 
port a small average. Whence then this local phenomenon ? 
The Connecticut people call them " Green's shad," attributing 
the increase to the artificial hatching by Seth Green, at Hadley 
Falls, in 1867 ; and this opinion gets color from tlie fact that, 
in 1868, the small yearling fish were unusually plenty. But it 
is further to be noticed that, in 1868, the Connecticut assembly 
passed an Act forbidding any mesh of less than five inches on 
the pounds, whereas the mesh used to be as small as 2|- inches ; 
and furthermore, a " close time " of thirty-six hours in the week 
was established. The direct result of this was that the yearlings, 
two-year-olds, and perhaps some three-year-olds, instead of be- 
ing stopped,* escaped through the meshes, and were ready to 
return this year as much larger fish. If this remarkable run 
turns out to be really peculiar to the Connecticut, it will be 
fair to seek its causes partly in the artificial hatching that has 
gone on for three seasons at Hadley Falls, and partly in the 
wise law which limited the mesh of the pounds ; and it can 
scarcely be doubted that, if the drag-net men, the seine men, 
and the pound men will exercise forbearance, they will all be re- 
paid many fold in the regular supply of large and numerous fish. 
On the Merrimack artificial liatching was carried on by the 
State, but only at the place of Mr. A. C. Hardy. The process 
was the same as last year,t but labored under the disadvantage 
of having no pool to keep the fish in till ripe. Moreover a great 
deal of spawn was lost by reason of impurities which came 
down a brook in which some of it was placed to be hatched. 
Some spawn was sent to Lake Winnepisseogee, some was car- 
ried to Mystic River, and a large quantity was used for the 
Merrimack itself. The following tables will show the daily 
detail of the fishery : — 

* See Rep. for 1867, p. 11 ; 1868, p. U ; 1869, p. 22. 
t Report for 1869, p. 7. 



INLAND FISHERIES. 



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1871.] 



SENATE— No. 11. 



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INLAND FISHERIES. 



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1871.] 



SENATE— No. 11. 



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>> 

I 



10 



INLAND FISHERIES. 



[Jan. 



In taking the averages of thes« tables and comparing them 
with the results of last year, we find the following proportions 
in the fish taken : — 



Whole 
No. Taken. 



Males 
to Females. 



1869. 

June 10-26=10 days, . 
June 26-July 28=32 days, 

ISTO. 

June 9-24=14 days, 
June 24-July 19=36 days, 



1,207 
465 

487 
312 



While the two years agree in the fact that more fish are taken 
in the first third of the season than in the last two-thirds, tliey 
disagree in the proportion of males, which are about equal 
in number to the females this year, while they were three or 
four times more numerous during the last year. A reason for 
this is that the seining was all done during the nig-ht in 1870, 
while in 1869 the seine was hauled both morning and night, 
and it is at the latter time that most females are usually cap- 
tured. Nevertheless, despite such modifying conditions, it is 
probable that the males were much less numerous than they 
sometimes are. It cannot be said that the fishing was really 
poorer this season, because the night seining was much the 
same in each year. On the other hand, there is no increase of 
large fish, nor is this to be looked for till next year or the year 
after. 

The mean temperatures of air and water, during the hottest 
part of the day, were as follows :~ 



Air. 



Water. 



1869. 

June, 

July (11 days), 

18TO. 

June (27 days), 
July (19 days). 




66° 
65« 

7ir 
76« 



1871.] SENATE— No. 11. 11 

From these averages it appears that the raean summer tem- 
peratures of the water of this portion of the Merrimack are 
about the same as those of the air. 

By aid of the State police the fishery laws were pretty well 
carried out, and several persons who illegally seined shad were 
prosecuted both here and on the Connecticut. The laws 
would be still better enforced were it not that towns are often 
extremely negligent in their appointment of fish wardens. 

(3.) Of the Smelt QOsmerus viridescens}. — The Acts of 
1868 and 1869 have apparently had a direct eff'ect in increasing 
these fish by protecting them from nets, on or near their spawn- 
ing grounds. The present season has proved even better than 
the last, and the hook-and-line men everywhere report a good 
catch, and often an increase of large specimens. 

(4.) Of the Salmon (^Salmo salar}. — Of those raised on joint 
account for New Hampshire and Massachusetts by Messrs. 
Robinson and Hoyt, somewhat over 1,000 were set free last 
summer in waters connected with the Pemigewasset. This was 
a great falling off from the number hoped for. Mr. Brackett 
set free in the Mystic River about TOO raised by himself. These 
two lots were hatched the winter of 1868-69. Messrs. Bacon, 
Dexter and Coolidge placed those raised by them. — about 
1,500, — in one of the streams of Cape Cod. In another Cape 
Cod stream several hundred young salmon were placed, from 
the State hatching-house. It should be added, as a much more 
important item, that 2,000 salmon fry were put in a tributary 
of the Connecticut, within the limits of Vermont, in the spring 
of 1869, and about 30,000 more in the spring of 1870, by 
Professor Hager, late Commissioner of that State. The State 
hatching-house at Wareham was closed last spring, partly because 
the experiments had been carried far enough, and partly by 
reason of the death of Mr. Samuel T. Tisdale, who had done so 
much to insure its success. This gentleman was one of the 
earliest and most energetic advocates of pisciculture.* A large 
manufacturer of iron, he owned the water-power of the Agawam 
River and its tributaries, besides extensive tracks in the noted 
Plymouth woods, beset with many fine ponds. His natural 
enthusiasm for woodcraft, and especially for fishing, led him, 

* An account of the introduction of black bass, from his own pen, will be fonnd in 
Appendix C. 



12 INLAND FISHERIES. [Jan. 

many years ago, to undertake the preservation and improvement 
of the fisheries ; and his influence and example were very use- 
ful to the enterprise. His quaint old house at Agawam, with 
its endless doors and rooms, its portraits of noted hunters and 
fishermen, its fine pictures of game fish, and its array of nets 
and fly-rods, was the beau ideal of the followers of Isaac Walton, 
to whom its hospitable gate was ever open. 

When the Commissioners sought a place for their experi- 
ments, Mr. Tisdale offered the free use of the noted Maple 
Spring, a tributary of Agawam River ; and he not only super- 
intended the work, but expended a considerable sum in further- 
ing it. During its two seasons, from November, 1868, to May, 
1870, there were hatched at this small establishment the 
following fishes :— 

True salmon QSabno salar), . . . 3,320 

St. Croix land-locked salmon {Salmo sp. ?), . 4,575 

Brook trout (^Sab/io fontinalis^, . . . 20,281 

Togue or Lake trout {Salmo toma)^ . . 2,450 

White fish (Cbr^g-oww^ a/6w5), ... 30 

Chsirr (^Salmo U7nbla), 4 



30,660 



The whole place, with its hatching-house, pools for breeders, 
and runways for the fry, still remains in excellent condition 
for future work. 

The temperatures of the air and water were continued daily 
until the closing in May, and were usually taken at about 
9 A.M. 



1871.] 



SENATE— No. 11. 



13 



Temperature of Water and Air, 





Water. 


Air. 




Water. 


Air. 




Water. 


Air. 


1869. 






1870. 






is-ro. 






Dec. 1, 


48 


44 


Jan. 14, 


44 


24 


Feb. 28, 


44 


34 


2, 


45 


29 


15, 


46 


38 








3, 


44 


29 


16, 


46 


42 


Mar. 1, 


46 


36 


4, 


44 


34 


17, 


46 


44 


2, 


46 


32 


5, 


46 


40 


18, 


48 


42 


3, 


44 


28 


6, 


46 


38 


19, 


46 


37 


4, 


44 


32 


■7, 


43 


26 


20, 


44 


40 


5, 


46 


34 


8, 


44 


24 


21, 


46 


40 


6, 


48 


38 


9, 


43 


28 


22, 


45 


38 


7, 


44 


32 


10, 


46 


40 


23, 


45 


49 


8, 


46 


34 


11, 


44 


32 


24, 


47 


40 


9, 


46 


34 


12, 


46 


38 


25, 


48 


52 


11, 


46 


32 


13, 


46 


38 


26, 


48 


46 


13, 


42 


32 


14, 


44 


34 


27, 


50 


52 


15, 


46 


50 


15, 


44 


38 


28, 


48 


42 


17, 


46 


31 


16, 


45 


40 


29, 


45 


36 


18, 


46 


34 


17, 


47 


38 


30, 


46 


40 


20, 


51 


46 


18, 


46 


38 


31, 


45 


36 


22, 


48 


42 


19, 


45 


34 








23, 


48 


47 


20, 


44 


32 


Feb. 1, 


45 


30 


24, 


47 


38 


21, 


42 


32 


2, 


44 


29 


25, 


47 


30 


22, 


46 


46 


3, 


46 


33 


27, 


49 


38 


23, 


45 


41 


4, 


45 


27 


29, 


49 


42 


24, 


43 


32 


5, 


45 


33 


31, 


49 


46 


25, 
26, 


45 
46 


42 
45 


6, 

7, 


46 

48 


36 
37 


Apr. 3, 

4, 

6, 

7, 

8, 

9, 

10, 

11, 

12, 

13, 

14, 

16, 

17, 

21, 

23, 

24, 

26, 

28, 

29, 

30, 


47 

47 
47 
49 
49 
50 
51 
49 
45 
50 
51 
49 
48 
56 
54 
54 
54 
52 
53 
53 


37 
39 
42 
46 
48 
52 
56 
50 
48 
56 
60 
46 
45 
50 
58 
59 
60 
58 
60 
61 


27, 


47 


42 


8, 


46 


32 


28, 


49 


52 


9, 


46 


32 


29, 


48 


46 


10, 


46 


33 


30, 


47 


39 


11, 


46 


31 


31, 

ISTO. 

Jan. 1, 

2, 

3, 

4, 

5, 

6, 

7, 

8, 

9, 

10, 

11, 

12, 


45 

44 
48 
47 
45 
45 
43 
46 
44 
44 
45 
46 
46 


36 

48 
52 
52 
34 
32 
32 
32 
32 
22 
36 
38 
48 


12, 
13, 
14, 
15, 
16, 
17, 
18, 
19, 
20, 
21, 
22, 
23, 
24, 
25, 
26, 


46 
46 
44 
46 
48 
46 
44 
48 
47 
46 
43 
44 
46 
42 
44 


46 
28 
36 
36 
34 
36 
38 
38 
39 
29 
19 
28 
30 
16 
24 


13, 


47 


45 


27, 


46 


31 


May 3, 


52 


59 



14 



INLAND FISHERIES. 

Mean Temperatures, 



[Jan. 



Air. 



"Wator. 



December, 1869, . 
January, 1870, 
February, " 

March, " (22 days), 
April, " (20 days). 




45.3 

46 

45.5 

46.5 

50.4 



Mean of three winter months, 1870, 
" " " 1869, 



36.3 
31.4 



45.6 
45.8 



The temperature of the water was often observed to fall 
before a storm, just as it did last year. (See Report for 1869, 
p. 80.) 

(5.) Of the St. Croix Land-locked Salmon (^Salmo sp.?^. — 
Mr. John Shields was sent to Grand Lake stream, in Maine, in 
the autumn of 1869, and he brought back, as the share of 
Massachusetts, 11,350 eggs. Of these, 1,100 were sent to Mr. 
E. A. Brackett, at Winchester, and to Mr. D. H. Gilbert, at 
Plymouth, and the remainder were kept in the State hatching- 
house, with the following result : — 



Eggs deposited, . 
Defective, . 

Hatched, . 
Young died. 



Alive, April 12, 1870, 



10,250 

7,4T5 

2,775 
218 

2,557 



An evil destiny seemed to preside over this enterprise ; for, 
not only was the number of eggs less than had been expected, 
but the proportion of impregnated ova was smaller than last 
year ; and, at last, when the fry were moved to the pools at 
Winchester, by reason of the closing of hatching-house, the 
water proved unsuitable, and, during the extraordinary heat of 
the past summer, nearly all of them were lost. The yearling 
fish, however, did remarkably well. These consisted of true 
and land-locked salmon mixed together. They were taken 



1871.] SENATE— No. 11. 15 

from the runways at Wareham and were set free in suitable 
waters, where they ought to be heard from within four or five 
years. 

(6.) Of the Sebago Land-locked Salmon ( Salmo sebago') . — 
Mr. Brackett made an expedition to Songo River to get breeders 
of this species. He was assisted by Robert R. Holmes, a man of 
experience in the handling of live fish. Dr. Fletcher, Com- 
missioner of New Hampshire, met them there and was of great 
service in procuring and transporting the salmon. They suc- 
ceeded in capturing a good number of fine specimens, but lost 
a part of them owing to the delays of a heavy storm on the 
lake. Four large females and the same number of males got 
through safely and were placed in the breeding pools. It was 
noticed that the females had much less vitality than the males, 
and died if deprived of proper water. The males, even when 
placed in a small tank, fought violently, and their combative- 
ness could be restrained only by icing the water continually. 
This salmon, from its large size, its land-locked habit, the ex- 
cellence of its flesh, its game qualities, and its ability to hold 
its own against pickerel, promises to be a valuable addition to 
our cultivated species. From these fish several thousand ova 
have already been obtained. 

(7.) Of the Togue or Lake Trout (^Salmo toma}. — The lot 
hatched in the winter of 1868-69 proved hardy and made a 
good growth. They met with only one considerable accident, 
whereby over 300 were killed by leaping on the horizontal net- 
ting that closed the lower end of their runway. Fish-breeders 
cannot be too often warned of the need of great care in the use 
of flumes, nettings, dams and other contrivances for confining 
fish. When any of these get clogged by floating matter they 
are liable to overflow, and the fry either escape, or, what is 
worse, they get caught and perish. The remainder of the togue 
were set free last spring in suitable waters, and will doubtless 
do well. 

(8.) Of the Brook Trout (^Salmo fontinalis). — As stated in 
the last report, they entered the races and began to spawn on 
the twentieth of October (1869), and the last spawn was de- 
posited as late as near the end of December ; these late eggs 
were, however, of no value ; not only were they quite white 
and transparent, but nearly all of them were unimpregnated. 



16 INLAND FISHERIES. [Jan. 

Whether this defect came from the exhaustion of the females 
at that season, or from the failure of the males, could not be 
ascertained. This barren spawn made a considerable difference 
in the result, which was as follows : — 

Spawn taken, 25,967 

Defective, 8,286 



Hatched, 16,681 

Young died, 185 



Alive April 12, 1870, . : . . . 16,496 

The first trout hatched out December 13th, making 54 days, 
with the water at 46.° The whole batch did not hatch before 
the first week in March.* 

(9.) Of the Charr (^Salmo umbla). — Prof. Coste had the 
kindness to send from France a number of eggs of this valuable 
fish. Most unfortunately the packing was wholly inadequate for 
a voyage of that length ; and only four or five of the ova re- 
tained enough vitality to hatch. The embryos were pale in 
color and delicate, and resembled those of the togue (^Salmo 
toma), except that the yolk-sac was even less elongated. The 
species is therefore a trout in the fullest sense, and is as far as 
possible removed from a salmon, whose yolk-sac is always elon- 
gated and pointed. For carrying eggs a long distance, the de- 
vice adopted by Mr. Shields is doubtless one of the best : a set 
of light wooden frames made to fit a tin box, and placed one 
above the other. On each frame is stretched a mosquito net, 
which supports a single layer of eggs. The space between the 
frames is packed with very wet moss ; and the box is then fitted 
with a punctured tin cover, and is placed in a wooden case full 
of sawdust. 

(10.) Of the White Fish QCoregonus albus). — A few eggs, 
sent by Mr. Seth Green, were hatched by way of experiment. 
They are to be treated exactly like trout eggs, but the embryos 
are so small and delicate that much more trouble would be 

* Trout of very small size sometimes carry spawn. Eev. L. Stone took 67 eggs from 
a female that weighed only 1-2 an ounce. This was probably a specimen from some smalj 
brook where the growth was slow. 



1871.] SENATE— Xo. 11. 17 

needed to confine them. A large number were hatched by the 
New Hampshire commissioners. 

Of Black Bass (Gri/stesfasciatus}. — This fish continues to 
increase in popularity ; and the Commissioners have been able 
to answer only a part of the requests for stocking ponds. At 
the present rate, it ought to replace the pickerel in our chief 
ponds within a few years. The latter fish, like all bad charac- 
ters, makes a worse show the more he is studied. Dr. E. L. 
Sturtevant investigated their powers of eating, in the following 
manner. He put two young pickerel, about 5 inches long, in 
a trough with a great quantity of little minnows ( Ci/prinoids} of 
about one inch in length ; and these two pickerel ate 128 min- 
nows the first day ; 132 the second ; and 150 the third ! And 
they increased one inch in length in forty-eight hours I They 
were mere machines for the assimilation of other organisms ! 

The interest in fish culture is steadily increasing,* and increas- 
ing in the right way, tending to small establishments for the 
benefit of the households to which they are attached ; so that 
we may hope, one day, to see the trout pools as common as the 
poultry yards. Indeed, they would increase much faster than 
they do, were it not that people are deterred by the supposed 
expense and difficulty ; and this error is partly caused by writ- 
ers on the subject, albeit unintentionally, and by the dealers in 
live fish, who often recommend, and perhaps keep for sale, a 
great quantity of apparatus, which is, in most cases, quite un- 
necessary. If a man who has a spring brook, will divide it off 
into proper sections for large and small fish, and will provide a 

* The following prizes have been offered for Fish culture : 

The Massachusetts Society tor Promoting Agriculture, will, on March 1st. 1872, award 
two prizes, respectively of S300, and of S200, for the two best establishments for the cul- 
ture of Food-Fishes within this State. 

A Committee of the Trustees of said society will determine the awards, and reserve 
the right to withhold them, if, in their opinion, none of the establishments are worthy of 
them. 

All competitors must send their names and addresses to the Secretary of the society, 
before December 1, 1871. 

In determining the awards, the Committee will be guided by the following qualifica- 
tions: — 

1. The number of species of Fishes cultivated. 

2. The number of individuals, and their size and condition. 

3. The number of eggs hatched in the establishment, and of young reared from them. 

4. The neatness and economy of the establishment, and the excellence of the lixtures. 

Edward N. Pebjslins, Secretary. 

3 



18 



INLAND FISHERIES. 



[Jan. 



good spawning bed, he has only to put in some adult fish and 
let them multiply. He then can feed them as well as his means 
allow, and he will always have a good supply, by leaving, each 
year, a sufficient number of breeders. 

The interest in pisciculture has been further exhibited by 
applications for the leasing of great ponds under cliapter 384, 
section 9 of the Acts of 1869, commonly called the Act for en- 
couraging the cultivation of useful fishes. Seven ponds have 
been leased during the year, as follows : — 



NAME. 


Lessees* 


Date. 


Term. 


Tisbury Great Pond, . 


Allen Look and others, , 


1870. 
Feb. 23, 


10 year*. 


MendonPond, ■ . . . 


L. J. Wilson and another, . 


Apr. 6, 


20 " 


Baptist Pond, Newton, . 


F. C. Hyde and others, . 


Sept. 13, 


20 *' 


Silver Lake, Wilmington, . 


C. 0. Billings and others. 


July 7, 


20 '♦ 


Waushakum Pond, Framingham, 


E. L. Sturtevant and others, 


Feb. 5, 


20 •* 


Archer's Pond, Wrentham, . 


William E. George, 


Nov. 3, 


15 " 


Chauncey Pond, Westborough, . 


Trustees of State Reform School, 


Apr. 1, 


5 " 



Seeing that the State has not been accustomed to make its 
inland fisheries a source of revenue, it was deemed consistent to 
charge only a nominal rent for the ponds, except where the 
rent was payable to towns. Great care was taken to find out 
if the lessees were responsible persons, and to ascertain if there 
were any valid objections to leasing the ponds which were 
applied for.f 

In the case of Tisbury great pond there was much opposition; 
and a public hearing was held by the Commissioners to deter- 
mine the rights of the parties. This is a tidal pond whenever 
the beach, which separates it from the sea, is cut through, 



* Amount paid by the lessees as rent, as follows :— 

Tisbury Great Pond. — Value of 1-20 offish taken, except eels, payable to town of Tisbury, 

Mendon Pond.— One dollar per year for six years, $50 per year for rest of term, payable 
to town of Mendon. 

Baptist Pond. — One dollar per year. 

Silver Lake.— One dollar per year, 

Waushakum Pond. — One dollar per year for six years, $50 per year for rest of term, pay- 
able to Framingham. 

Archer^s Pond.— One dollar per year, 

Chauncey Pond — One dollar. 

t See Appendix F. 



1871.] . SENATE— No. 11. 19 

either artificially or by storms. The fishery (smelts, bass, 
white perch and alewives) is dependent, of course, on this 
opening. And, as it appeared that the riparian proprietors 
were the only persons who had a right, through theii* commis- 
sioners of sewers, to cut through this beach, it seemed just to 
grant a lease to the said proprietors, on such conditions as 
should insure the increase of the fishery, and should reimburse 
the townspeople for any loss they might constructively incur. 

Appropriation. 
The appropriation last year was $4,000 and the expenses have 
been as follows : — 

Fish culture : salmon, land-locked salmon, lake trout, 

trout, black bass, shad, <fec., .... $1,541 10 

Legal expenses, chiefly in the Holyoke case, . . 650 00 

Fish ways : at Lawrence, cfec, .... 1,208 09 

Sundries, 69 25 



13,463 44 



There are now on hand, bills more than enough to exhaust 
the balance, and the Commissioners therefore respectfully 
recommend an appropriation of $4,000. 

THEODORE LYMAN, 
E. A. BRACKETT, 
THOS. TALBOT, 
Commissioners on Inland Fisheries, 



20 



INLAND FISHERIES. 



[Jan. 



APPENDIX. 



[A.] 

NEW ENGLAND COMMISSIONERS ON INLAND FISHERIES. 



M A I X E . 

Charles G. Atkins, Augusta. 

NEW HAMPSHIRE. 

W. A. Sanborn, "Weirs. 

W. W. Fletcher, Concord. 

T. E. Hatch Keene. 

VERMONT. 

M. C. Edmands, "Weston. 

M. Goldsmith, Rutland. 

MASSACHUSETTS.* 

Theodore Lyman, Brookline. 

E. A. Brackett, "Winchester. 

Thom:as Talbot, North Billerica. 

CONNECTICUT. 

"W. M. Hudson Hartford. 

Robert G. Pike, . Middletown. 

Lord, Old Sajbrook. 

RHODE island. 

Neoton Dexter, Providence. 

S. S. Foss, Woonsocket. 

* We have to lament the death, by a railroad accident, of Mr. Alfred R. Field, lately 
one of the Commissioners. He was among the most eminent railway engineers of West- 
ern Massachusetts; and his professional advice had been particularly valuable in the con- 
struction of the great lishways at Holyoke and Lawrence. 



1871.] SENATE— No. 11. 21 



[B.] 
LEGISLATION FOR 1870 



[Chap. 249.] 
An Act for the protection of the Fisheries in the Head Waters of Buzzard's Bay. 
Be it enacted, ^c, as follows: 

Sect. 1. No person shall draw, set, stretch or use any drag net, 
set net, purse or seine of any kind, or construct, maintain or use any 
fish weir, yard or pound for taking fish of any kind anywhere in the 
waters of Buzzard's Bay northerly of or within a straight line ex- 
tended from the entrance to the harbor in West Falmouth to Bird 
Island light ; thence in a straight line to Great Neck Point on the 
Marion shore, nor in any bay, cove, inlet, river, creek or stream 
bordering on or flowing into said waters within the limits aforesaid. 

Sect. 2. Whoever violates any provision of this act, or aids or 
assists in "violating the same, shall forfeit and pay to the use of any 
person who shall sue therefor, a sum of not less than twenty dollars 
nor more than one hundred dollars, to be recovered in an action of 
tort, in any court having jurisdiction of either party to such action ; 
and shall also upon conviction of any violation of any provisions of 
this act before any justice or court competent to try the same, be 
imprisoned in the house of correction not exceeding sixty days, or 
pay a fine of not less than ten dollars or more than one hundred 
dollars, one-half to the use of the complainant and the other half to 
the use of the county within whose jurisdiction the offence was 
committed. 

Sect. 3. Any net or seine used by any person in violating any 
provision of this act, together with any boat, craft or fishing ap- 
paratus used in unlawfully working such net or seine, and all fish 
found therewith, captured contrary to any provision of this act, 
shall be forfeited to the Commonwealth. 

Sect. 4. All nets and seines in actual use set or stretched in 
violation of this act within the waters and limits aforesaid, holding 
fish contrary to any provisions of said act, are declared to be com- 
mon nuisances. lApproved May 16, 1870. 



22 INLAND FISHERIES. [Jan. 

[Chap. 284.] 
An Act for the protection of the Fisheries in the Vicinity of Nantucket. 
Be it enacted, ^-c, asfoUovcs: 

Sect. 1. It shall not be lawful for any person or persons to take 
any fish with any kind of net, or to set any net for the purpose of 
taking any fish therewith, within one mile from the shores of Nan- 
tucket, Tuckemuck, Smith's, Muskegat and Gravel Islands, without 
first obtaining permission of the selectmen of Nantucket. 

Sect. 2. Every person violating any provision of this act, shall 
forfeit and pay for each offence a sum not less than fifty nor more 
than five hundred dollars. 

Sect. 3. The town of Nantucket is hereby authorized to choose, 
at the annual town meeting, or at any meeting duly warned for that 
purpose, such number of fish wardens as may at the time be deemed 
necessary, who shall be sworn to the faithful discharge of theu' duty, 
whose duty it shall be to prosecute for every offence against any 
provision of this aet. 

Sect. 4. All vessels, boats, craft and apparatus of every kind 
employed in taking fish contrary to the provisions of this act, or 
having on board any such fish unla^-fully taken, shall be liable for 
any fines, penalties, forfeitures and costs herein provided for, and 
may be attached on mesne ^Drocess, and sold on execution as the 
property of the person or persons offending by the use thereof. 
And it shall be the duty of said fish wardens to seize such vessel, 
boat, craft or apparatus, and detain the same not exceeding forty- 
eight hours, in order that the same may be attached or arrested by 
due process of law : provided^ however, that as soon as the master 
or owner of such vessel, boat, craft or apparatus shall pay the j^en- 
alty required by the fish wardens, to the treasurer of the town of 
Nantucket, together with the accrued costs, such vessel, boat, craft 
or apparatus shall be discharged with the effects therein ; and the 
ninth clause of section thu'ty-two of chapter one hundred and thirty- 
three of the General Statutes is hereby so modified that it shall not 
apply to boats, fishing-tackle and nets taken under the provisions 
of this act. 

Sect. 5. All fines, penalties and forfeitures recovered and re- 
ceived by virtue of this act, shall go, one-half to the treasurer of the 
town of Nantucket, for the use of said town, the other half to the 
fish warden or fish wardens commencing the action ; and said fines, 
penalties and forfeitures may be recovered, together with legal costs 
of suit, by an action of tort in any court of record proper to try the 
same. 

Sect. 6. Chapter six of the acts of the year eighteen hundred 



1871.] SENATE— No. 11. 23 

and fifty, chapter one hundred and fifty-six of the acts of the year 
eighteen hundred and fifty-five, and chapter ninety-five of the acts 
of the year eighteen hundred-and fifty-eight are hereby repealed. 

Sect. 7. This act shall take effect upon its passage. ^Approved 
May 27, 1870. 



[Chap. 360.] 
An Act to amend an Act for encouraging the Cultivation of Useful Fishes. 
Be it enacted^ cfc, as follows : 

Sect. 1. Section nine of chapter three hundred and eighty-four 
of the acts of the year eighteen hundred and sixty-nine is hereby so 
amended that the commissioners on inland fisheries shall have no 
authority to lease any great pond exceeding twenty acres in area 
situated within the limits of Dukes county. 

Sect. 2. This act shall take effect upon its passage. [Approved 
June 15, 1870. 



[Chap. 369.] 
An Act in relation to the taking of Shad in the Connecticut River. 
Be it enacted, cfc, as follows: 

Sect. 1. The limitation of time for catching shad in the Con- 
necticut River in this state, shall hereafter be the same as that now 
fixed, or which shall hereafter be prescribed by the legislature of 
Connecticut, for taking shad in said river in that state. 

Sect. 2. All acts and parts of acts inconsistent with this act, are 
hereby repealed. 

Sect. 3. This act shall take effect upon its passage. [Approved 
June 18, 1870. 



[Chap. 382.] 
An Act to prohibit the taking of Black Bass in Lake Cochituate. 
Be it enacted, cf-c, as follows: 

Whoever catches, takes or destroys any black bass in the waters 
of Lake Cochituate in the towns of Natick, Wayland or Framing- 
ham in the county of Middlesex, shall forfeit for each offence not 
less than ten nor more than fifty dollars. [Approved June 21, 1870. 



[Chap. 41.] 
Resolve making an Appropriation for Fish-Cukure. 

Hesolved, That there be allowed and paid out of the treasury, a 
sum not exceeding four thousand dollars, to be expended under 
direction of the commissioners of inland fisheries, for purposes con- 
nected with the culture of useful fishes and of stocking the waters 
of the Commonwealth therewith. [Approved 31ay 12, 1870. 



24 INLAND FISHERIES. [Jan. 



[C] 

[From the "Albion," August 14, 1869.] 

FISH CULTURE IN NEW ENGLAND. 

BY S. T. TISDALE, ESQ., OF EAST WAREHAM, MASS. 



The recent appointment of Fish Commissioners, and the interest 
manifested in the Fisheries of New England streams and lakes, es- 
pecially those of Massachusetts, prompts me to give in detail the 
reasons which led me to introduce the black bass to the waters of 
our own State, with other incidents thereto belonging. T do this 
that proper record of them may be made for the benefit of all 
parties feeling any interest in the subject. 

The trout streams of Barnstable and Plymouth counties have 
long been celebrated, and until the age of railroads, and the expan- 
sion of manufacturing interests, presented commanding pleasure 
and interest to every lover of the piscatorial sport. These two en- 
terprises, opening wide the door of transit to and from the streams, 
and increasing the family of anglers, have for many years led to their 
depletion to such an extent that it no longer repays the effort to 
resort to them. This was the case twenty years since, and now it 
is rare to catch trout of any value except in some choice preserve. 
This depletion of the trout streams led me to consider the subject 
of stocking the lakes and ponds of this vicinity with some game 
fish as a substitute. With the aid of a veteran angler and friend, 
now no more, I decided upon an effort to introduce the celebrated 
black bass of the northern lakes. I allude to Preston Hodges, then 
verging upon seventy years. He proposed to undertake and accom- 
plish the effort at my expense. This was the result of a conference 
at my house one evening in May, 1850, after an unsuccessful raid 
for trout near Agawam. Saratoga Lake was selected as the best 
location to obtain bass. In June he was upon the spot, where he 
remained some two weeks, and, aided by a henchman, captured 
some forty fish, thirty of which were kept alive. With these, seek- 
ing the most expeditious means of transit by rail, he started for 
Agawam, via Boston. They were placed in a large cask of water, 



1871.] SENATE— No. 11. 25 

properly cooled with ice, and reached Springfield only to die ! This 
was in June. Undaunted he retraced his stejDS, and was soon at 
the lake, and, with his trusted henchman, again catching a fresh 
supply of fish. The mortuary result of the Springfield route led 
him to discard its second attempt. By the first of July he was 
once more ready to start for Agawam with twenty-eight live fish. 
These were divided, and j^laced in two boxes, four feet long and 
some fifteen inches square. He came to Troy, and started for 
New York by steamboat down the Hudson River, making a night 
passage, and reaching New York in the morning at eight o'clock. 
During the night himself and henchman were constantly watch- 
ing, watering and icing the fish — they began to droop, and their 
loss seemed inevitable. They were carried to the Fall River 
steamboat, apparently gasping their last ! A change of water, 
fi-om a Croton tank, well iced, restored them, only one dying. This 
change and cooling was kept up during the day and through Long 
Island Sound until they reached Fall River, and from there, via 
railroad, to Agawam, two large casks of Croton water having been 
brought the entire distance for this purpose. For two days they 
were watched, watered, and cooled, without a moment's intennis- 
sion ; and on the arrival of the cars at Agawam, at 11 o'clock, 
A. M., the 4th day of July, anno Domini 1850, twenty-seven live 
black bass from Saratoga Lake were placed in Flax Pond, adjoin- 
ing my residence, thus stocking it forever ! This, I believe, is the 
pond first stocked in this State, if not in New England, Vermont 
probably excepted. Nor could I rest here. The foundation had 
been laid at Saratoga Lake for a further supply at a later season 
of the year. Of this I availed myself in November, and through a 
person employed there I had one hundred more live fish brought 
over the same route to Agawam, and distributed in several ponds 
of larger size within Plymouth Woods ; among them, White Island 
Pond, which is seven miles in circumference ; Great Sandy Pond, a 
mile long; Great Herring Pond, Pickled Pond, Agawam jVIill 
Pond, and Sturtevant's Pond. This was repeated in 1851 and 1852, 
and from these and their progeny more than thirty ponds in this 
region have been stocked through my own instrumentality, while a 
similar number have been stocked by other gentlemen of Pljmiouth, 
devoted to angling. The waters of Massachusetts are destined to 
teem with this superior fish, the first planting of which was in the 
beautiful Flax Pond. The creation of Fish Commissioners by the 
State opens the first leaf of a new and enlarged volume devoted to 
icthyology. It will lead to the study and natural and artificial 
propagation and culture of every desirable fish, and stimulate the 
4 



26 INLAND FISHERIES. [Jan. 

production of an important element of food. I will now give some 
account of the growth and habits of this fish, derived from twenty 
years' experience and observation. After stocking a pond no fishing 
should be permitted for five or six years. This gives ample time 
for a large increase, after which the observing angler may class 
them as to size with some accuracy. In waters adapted to their 
growth they will increase as rapidly as perch. In six years after 
being spawned, they will reach three pounds, and gradually increase 
to the maximum size, which may be set at five to six pounds, at the 
rate of about half a pound per year. Very many fish from two to 
three and a half j^ounds, have been taken from the ponds stocked 
in 1850 to 1852, and but few, comparatively, of five to six pounds. 
One of seven and a half pounds was taken late in May, 1864, 
which I had placed in a new pond, two years previous, then weigh- 
ing three and a half pounds ; but it was a female fish, from which I 
took a sack of spawn weighing two pounds. Another of equal 
length taken from another pond in June, after it had spawned, 
weighed five and three-quarters pounds. This would indicate a 
growth of one pound per year after reaching three and a half 
pounds, food being abundant. I cite these as facts, with some 
doubt as to their general application. The absence of more large 
fish may result from free fishing, and the greediness of the larger 
growth of fish to take the angler's tempting bait. It is noteworthy 
that the largest fish yet taken appear to be those which were trans- 
planted. They spawn in May, and appear to occupy their spawn- 
ing beds for nearly two months, being found thereon late in April, 
disappearing in June. Large, clean places are scooped out in four 
to eight feet depth of water, verging on the shore of the pond, and 
some four to ten feet diameter. These beds are made on sandy or 
gravelly bottom, are distinctly visible with fish thereon, from a 
boat as it passes over or near them. The trunk of a sunken tree, 
a shelving rock, or beside a lone rock, or bed of rocks, or other 
hiding place, is a favorite location for a spawning bed. They lie 
in one or more couples over their beds, and here for the period of 
incubation they keep watch and ward Avith constant fidelity. 
Around their beds may be seen perch, suckers, eels and catfish in 
plenty, ready to devour a portion of the ova. The bass are con- 
stantly at war with these voracious depredators, driving them off 
from moment to moment " under the current of a heady fight." 
Young bass are not seen in large numbers like the herring and some 
other fresh-water fish swimming near the surface a prey to their 
enemies. 
In embryo life they seem to come in a moment ! From close ob- 



187L] SENATE— No. 11. 27 

servation in a small pond where I placed several fish in April and 
May, and where I could daily watch their movements, beds were 
made by several pairs, over which the female hovered continually. 
Here they remained until the 24th of June. Every hour I watched 
them without any evidence of young fry. In the afternoon of this 
day, after an hour's absence, I returned and discovered several hun- 
dreds of minute young bass hovering at the surface of the water, 
while the parent fish was moving around her bed as usual. These 
young fish were darting about with activity — about fths of an inch 
long, looking like black motes in the water. ' For three or four 
days they kept in this position, and then scattered about the edge 
of the pond among the grass, a few being thus seen for some two 
or three weeks, when all sight of them was lost till September, at 
which time a few only were discovered of about two inches in 
length, with the tail marked with a cross-bar. 

The above refers to the first show of life from one bed. On the 
28th of June two other beds in the same manner developed their 
young. Most of these died or were devoured by the old fish. The 
precise time these fish spawn, or the duration of their spawning 
season, I have not yet fully discovered. I incline to the opinion 
that a period of two to four weeks passes before all their ova are 
deposited, and that they are hidden by them in the sand, in or around 
their beds, receiving impregnation from time to time from the male 
fish. The act of emitting their spawn I have never seen ; and re- 
peated efforts to express it from these fish in May, when supposed 
to be ripe, for the purpose of artificial impregnation, proved abor- 
tive. The ova of this fish are small, about one-fourth the size of 
salmon or trout spawn, very compactly laid in a film-covered sac, 
and apparently difiicult to escape through any artificial process. 
Further experiments beyond doubt will effect this. One fish is 
generally on guard at the bed, seemingly quite docile, and if 
alarmed, moves from it a few feet, but soon returns. This proba- 
bly is the female exercising her maternal care of the young. The 
young fish begin to be visible in June and July close in shore 
among the gi'avel, pebbles, or grass, darting with some activity, 
and near the surface, for the double purpose of food and protection. 
They are marked with a small black stripe across the tail, distinctly 
visible through their first summer ; after the first year this disap- 
pears, and they assume the general character of this fish, varying 
according to season, water and food. They are about an inch 
long when they first disport themselves, and reach about three 
inches in five months. 

They are caught by trolling with an artificial bait in imitation of 



28 INLAND FISHERIES. [Jan. 

a fish like a minnow, or a fly, the murderous spoon, or a strip of 
perch or pickerel, or any other fish, with line extended 25 to 200 
feet — or, by still fishing from a boat, with minnow, worm, or other 
bait, and from the shore with a rod-line at long cast. When 
hooked they plunge deep, and then come with velocity to the surface, 
breaching some two to four feet out of water, repeating this several 
times with a shaking motion, as if to shake the hook from their 
mouth. Their capture afibrds unequalled attraction to the angler. 
Often two will strike at once, if bait and fly, with long leader, are 
used. They are hardy, tenacious of life, and will live a long time 
out of water. They can be transported in a barrel half-filled with 
water in cool weather, 50 miles by rail, by once changing the 
water, say twenty of medium size, with entire safety ; and in warm 
weather ice must be used to cool^ not chilly the water (say to a 
temperature of 55 to 60 degrees). In this manner they can be 
carried to England with proper care, especially the smaller fish. 
They do not feed much at large in winter, as it is rare to catch 
them through the ice, and the belief is that they will not bite at 
this season, as a general rule. Indeed this is the result of present 
experiments, as those wintered in a small artificial pond recently, 
show that they go into winter-quarters by December, where they 
select some lone deep place, near or under the shelter of rocks or 
roots, and remain in a torpid state till spring, emerging to all ap- 
pearance in fine, active, vigorous condition. They feed much on 
flies in summer, and the calm surface of the lake is often agitated 
with their breaking for this purpose. They range wide in quest of 
food, often driving small fish ashore. In August, September and 
October, they are in the best condition for the table, and a baked 
black bass of four to five pounds, in September, with every appro- 
priate condiment, is a rich dish, which all who taste will fully 
appreciate. 



1871.] SENATE— No. 11. 29 



[B.] 

Supreme Judicial Court. Suffolk County. 

Theodore Lyman and others, Commissioners of Inland Fish- 
eries^ on behalf of the Commonwealth of Massachusetts, vs. The 
HoLYOKE Water Power Company. 



REPORT. 

The above entitled case was heard before me, upon the bill, 
answer, replication and proofs. The facts set up in said bill and 
answer were, for the purposes and issues of the case, admitted by 
the parties to be true, except as to the allegations : 

1st. That salmon had been driven from the Connecticut River 
by the defendants' dam — as to which it was agreed that the state- 
ments of the answer are substantially true ; and, 

2d. The parties were at issue upon the question, whether the 
defendants' dam had caused a decrease of shad below it in this State. 

It was admitted by the defendants, as stated in their answer, that 
there has been a decreasing quantity of shad in said river for the 
last fifty years, and that such decrease had been continued in said 
State since the building of the dam of the defendants, and had 
amounted for the last 25 years, to 25 per cent, or more. 

The plaintifis claimed that such decrease was caused by the said 
dam, which the defendants denied. 

Witnesses were called who testified as to their knowledge of the 
river and its fisheries, and some of them gave their opinion as 
experts, without objection by either party. It appeared that the 
breeding ground, between said dam and Turner's Falls, was cut off 
by the building of the defendants' dam, but it was also shown that 
the fishing ground was cut off to the same extent — the fisheries so 
destroyed being those paid for, as alleged by the defendants in their 
answer. 

It was proved that the facilities for taking fish from the river 
below the defendants' dam, by an enlarged number of fisheries, and 
of nets of all kinds, along the river and at its mouth, and of fish- 
pounds at the mouth of the river and in the Sound, had been greatly 
increased since the building of the defendants' dam, and that by 
these means, and by the more vigorous prosecution of the business 
of taking the fish in all these ways, below the dam in Massachusetts 



80 INLAND FISHERIES. [Jan. 

and in Connecticut, and at the mouth of the river, extending into 
the Sound, the passing of the fish up said river is much more seri- 
ously impeded now than at the time said dam was built, and that a 
smaller proportion of the fish entering said stream, or coming near 
the mouth of it for the purpose of entering, succeed in getting as 
far north as the south line of said State, now than at that time. 
That the increase of manufacturing on the banks of the river and 
its tributaries, has, to some extent, polluted the water ; that by the 
clearing of the woods towards the head-waters of said river and by 
the drainage of swamps and the sewerage of large towns, the 
annual and other freshets in said river have been increased in volume 
and in the turbidness of the water, and shortened in their duration. 

The defendants claimed that the supply of fish below their dam 
in Massachusetts, would be diminished by all these causes, and upon 
the evidence before me, I was of opinion that they were so dimin- 
ished. Upon the question whether the fisheries below the dam 
were materially damaged by its maintenance, the evidence was 
seriously conflicting. It did not appear that any owners of such 
fisheries had ever claimed that they were so damaged. The only 
practical fishermen who were called, were owners of fisheries below 
the dam, a little south of the State line, familiar with the river fish- 
eries for many years, one of them having been familiar with the 
river from said dam to its mouth, for thirty years or more ; they 
both testified that, in their judgment, such fisheries below said 
dam were not so injured. 

Mr. Lyman, the chairman of said commissioners, was the only 
witness examined for the plaintiffs. He testified as to the habits 
and instincts of shad, and among other things, that those spawned 
in the breeding grounds above said dam would return to those 
breeding grounds to deposit their spawn ; that when shut out from 
those grounds they would, after a time, disappear from the river, 
and that such source of supply would thereby be cut off; and the 
fish below the dam would be decreased in number, and the fisheries 
thereby diminished in value ; and that, in his opinion, a proportion 
of the decrease in number of fish below the dam since its erection 
was due to this cause. 

Upon the evidence given by him, I find that a small but appreci- 
able proportion of such decrease was due to the maintenance of 
said dam. Upon the evidence before me I am not able to estimate 
the proportion. 

Upon the testimony of Mr. Lyman, I find that the fishway which 
said commissioners now require the defendants to build and main- 
tain, would not diminish the water-power of the defendant company, 



1871.] senate—No. ii. 31 

except when they may desire to add to the permanent height of 
their dam by. flash-boards. 

All questions of law raised by the bill, answer and report, as to 
the constitutionality and validity of the legislation upon which the 
plaintiffs' case rests, are reserved for the consideration of the full 
court. 

The bill, answer and this report to be printed, and either party to 
be at liberty on the hearing to refer to the legislation which is set 
forth as referred to therein. 

JAMES D. COLT, J. S. J. C. 

Bill of Complaints. 

To the Honorable the Justices of the Supreme Judicial Court, within and for 
the County of Suffolk and Commonwealth of Massachusetts. 

Humbly complaining, show unto your honors your orators, The- 
odore Lyman, of Brookline, in the county of Norfolk, Alfred R. 
Field, of Greenfield, in the county of Franklin, and Edward A. 
Brackett, of Winchester, in the county of Middlesex (who bring 
this bill in their name as Commissioners on Inland Fisheries, but in 
behalf of the Commonwealth of Massachusetts), that by virtue of 
and under the provisions of an act of the legislature of said Com- 
monwealth, passed in the year of our Lord one thousand eight 
hundred and sixty-six, entitled "An Act concerning the obstructions 
to the passage of fish in the Connecticut and Merrimack Rivers," 
(and subsequent acts upon the same subject-matter,) the governor 
of said Commonwealth, by and with the advice of the council of 
said Commonwealth, appointed said Theodore Lyman and Alfred R. 
Field, the twenty-ninth day of June, A. D. 1866, and said Edward 
A. Brackett, the seventh day of July, A. D. 1869, Commissioners 
on Inland Fisheries for the term of five years from and after the 
date of their appointments. 

And your orators duly accepted said oflice of commissioners to 
which they had been appointed as aforesaid ; and ever since said 
appointment they have and now hold said ofiice. And your orators 
in pursuance of the duties and obligations required of them under said 
act, by virtue whereof they were appointed, proceeded to examine 
the several dams on said rivers in the Commonwealth, and after due 
notice given to the owners and proprietors of said dams, as required 
by section second of said act, did determine and define the mode 
and plan upon which fishways should be constructed, suitable and 
suflicient, in the opinion of your orators, to secure the free passage 
of salmon and shad up said rivers during their accustomed seasons. 



32 INLAND FISHERIES. [Jan. 

And your orators further show, that the State of New Hampshire, 
by an act of its legislature, passed in the year of our Lord one thou- 
sand eight hundred and sixty-five, authorized the appointment of 
commissioners of fisheries in said rivers, and authorized said com- 
missioners to act in reference to said fisheries, and the construction 
of fishways to secure the passage of salmon and shad up said rivers 
in said State of New Hampshire. And under said act of the State 
of New Hampshire, commissioners were appointed with authority 
to act as aforesaid, and accepted said appointment ; and your ora- 
tors submitted a full and specific statement and description, and 
plan of the fishway so determined as aforesaid, to said commission- 
ers of the State of New Hampshire, which said commissioners 
approved the plan of said fishway so submitted by your orators. 
And your orators further show, that the Holyoke "Water Power 
Company, a corporation duly established by laws of this Common- 
wealth, are the owners and proprietors of a certain dam, constructed 
upon and across the Connecticut River, at Holyoke, in the county of 
Hampden and Commonwealth aforesaid ; and prior to the erection 
and maintenance of said dam, fish, both salmon and shad, were 
accustomed to pass up said river in great numbers to their spawning 
beds above said dam ; and such fish in said river were a source of 
great value to the Commonwealth, furnishing large amounts of food 
to the inhabitants thereof, and were a source of great value and in- 
come to the riparian proprietors of said river, both above and 
below said dam; but the erection of said dam has proved an 
efiectual bar to the passage of all fish, especially shad and salmon, 
up said river to their accustomed spawning beds at all seasons of the 
year, and has prevented said fish from passing up said river at their 
accustomed seasons, and has eifectually destroyed all fish rights, both 
above and below said dam, and has effectually prevented the passage 
of said fish up said river as aforesaid. 

And your orators further show, that in pursuance of their duties 
as such commissioners, after due notice to said Holyoke Water 
Power Company, they examined the dam of said corporation and 
determined the mode and plan upon which a fishway should be con- 
structed, suitable and sufficient in their opinion to secure the free 
passage of salmon and shad up said river and over said dam during 
their accustomed seasons, and furnished a plan and specifications for 
such fishway to said corporation, and filed a copy thereof in the 
office of the secretary of the Commonwealth of Massachusetts, with 
an affidavit of the fact that such plan and specifications had been 
furnished to said corporation. 

And your orators further show, that said plan and specifications 



1871.] SENATE— No. 11. 33 

were furnished by your orators to said corporation on February 
tenth, A. D. 1870, and said corporation were requested and required 
to build and complete said fishway in accordance with such plan and 
specifications : a copy thereof is hereto annexed marked " A." And 
your orators hoped that the said corporation would have constructed 
said fishway and have agreed with your orators for building the 
same, as by law they should do. But now so it is, may it please 
your honors, that the said corporation utterly refuses to construct 
said fishway, or to agree with your orators for the construction of 
the same, and have so refused for more than thirty days since your 
orators have furnished to them a plan and specifications for building 
said fishway ; said corporation pretending that they are not by law 
required to construct such fishway, or to agree with your orators for 
the construction of the same, and that the Commonwealth of Massa- 
chusetts have no power or right to command or require them to 
build such fishway. Whereas your orators charge the contrary of 
all such pretence to be true, as they say said corporation is by law 
required to build such fishway according to said plan and specifica- 
tions furnished as aforesaid; but nevertheless, the said Holyoke 
Water Power Company under such and other like pretences utterly 
refuse to build and construct such fishway, and refuse to agree with 
your orators for the construction of the same. 

To the end therefore that said corporation may by its ofiicers true 
answer make to all and singular the matters herein before stated and 
charged as fully and particularly as if the same were hereinafter 
repeated and they thereto directly interrogated, and more especially, 
that they may answer whether your orators after due notice deter- 
mined and made a plan for a fishway over the dam of said Holyoke 
Water Power Company, for the free passage of salmon and shad as 
before stated, and whether said company are the proprietors of said 
dam ; and whether said company have been furnished with a plan 
and specifications of said fishway; and whether for more than thirty 
days after such plan and specifications were furnished, they have 
refused to construct said fishway, or to agree with your orators for 
the construction of the same. But your orators expressly waive 
any answers to the matters and things herein complained of and set 
forth on oath. 

And to the end that said corporation may be compelled by decree 
of this honorable court specifically to build and construct said fish- 
way according to said plan and specifications ; and that your orators 
in behalf of the Commonwealth of Massachusetts may have such 
further and other relief in the premises as to your honors may seem 
meet and the case require. 
5 



34 INLAND FISHERIES. [Jan. 

And may it please your honors to grant unto your orators your 
writ of subpoena, to be directed to the said Holyoke Water Power 
Company, thereby commanding said corporation at a certain day 
and under a certain pain and penalties therein to be specified, to be 
and appear before your honors, and then and there to answer all and 
singular the premises, and to stand to, perform and abide such order 
and decree therein as to your honors shall seem meet ; and your 
orators shall ever pray. 

THEODORE LYMAN. 
E. A. BRACKETT. 

Jos. F. Clakk, of Counsel for Complainants. 

Suffolk, ss. March 14th, 1870. Then personally appeared the aforesaid Theodore 
Lyman and E, A. Brackett, and made oath that all the allegations of the aforesaid bill of 
complaint within their knowledge are true, as that all other allegations therein are true, 
according to their best information and belief. Before me, 

Jos. F. Clark, Justice of the Peace. 

Filed March 14, 1870. 



ANSWER. 

The said defendants come and for answer to the bill filed by the 
plaintiffs, say : 

They admit that the plaintiffs were duly appointed, as they al- 
lege ; and that by proper legislation they were authorized to bring 
this suit ; and that they have examined the dam in Massachusetts, 
as they allege. 

They also admit the allegations of the bill, in reference to the 
doings of the State of New Hampshire, and of the commissioners 
appointed by that State, and that a plan of fishway was submitted 
to said last named commissioners, and approved by them, as is 
alleged. 

They also admit their own existence as a corporation, and their 
ownership of a dam across the Connecticut River, at Holyoke, sub- 
stantially as is alleged. 

They also admit that, before the erection of their said dam, shad 
were accustomed to pass up said river as far as the Montague dam, 
at Turner's Falls, and that said fish were of some value to citizens 
of said State, who were private owners of riparian fish rights 
for sale as food ; and that they were, to some extent, a source of 
income to such riparian proprietors upon said river, both above and 
below said dam, but they say that salmon had ceased to be found in 
said stream for many years before the building of said dam. 

They also admit that their dam has prevented fish from going 



1871.] SENATE— No. 11. 35 

above or in said river, and that it has destroyed fish rights between 
said dam and the said Montague dam; but they deny that it has 
destroyed or materially injured or damaged fish rights or owners of 
such rights below the dam of defendants. 

For the purposes of this case, they admit that the plaintiffs have 
determined a mode and plan of a fishway over said dam, sufiicient 
in their opinion to secure the free passage of salmon and shad, as 
they allege, and that they furnished a plan and specification to the 
defendants, and filed a copy thereof, as they allege ; and also that 
a plan and specification were furnished to the defendants on 

, and that they were requested and re- 
quired to build and complete said fishway in accordance therewith, 
and that they refused for more than thirty days, and now refuse to 
build, at their own expense, said fishway, or to agree with the plain- 
tiff's so to build it ; and that they have claimed, and do now claim, 
that they are not by law obliged to build the same as aforesaid, and 
that the Commonwealth of Massachusetts has no right to require 
them so to build said fishway. 

The defendants allege in excuse and justification of such refusal 
and claim, that the " Hadley Falls Company " was duly incorporated 
by the legislature of Massachusetts, by an Act passed April 28, 
A..D. 1848. That in and by said act, constituting the charter of 
said Hadley Falls Company, the said company was authorized and 
empowered to build and maintain a dam across the said Connecticut 
River, as the same was built by said company, and is now maintained 
by these defendants, upon condition, however (also set forth in said 
charter), that said Hadley Falls Company should pay to the owners 
of fishing rights existing at that time, above said dam, such dam- 
ages as should be awarded by the county commissioners of the 
counties in which said rights existed. 

That said Hadley Falls Company accepted said charter, and were 
duly organized under and according to its provisions, and duly paid 
all damages to owners of fishing rights above their dam, as in and 
by said charter is requked. 

That said Hadley Falls Company expended (including damages 
to owners of such fish rights) over two millions of dollars, and then 
failed. 

That by an Act of said legislature, passed in the year 1859, the 
defendant corporation was chartered, for the purpose of "upholding 
and maintaining said dam and one or more locks and canals in con- 
nection therewith, and of creating and maintaining a water power 
to be used, sold or leased for manufacturing or mechanical purposes ; 
and in and by said Act, the defendant company was authorized to 



36 INLAND FISHERIES. [Jan. 

purchase, take, hold, receive, sell, lease and dispose of, all or any of 
the estates, real, personal or mixed, with all the water power, water- 
courses, water privileges, dams, canals, rights, easements and appur- 
tenances thereto pertaining or belonging, or therewith connected, or 
which has at any time theretofore belonged unto, or been the prop- 
erty of said Hadley Falls Company." 

That the defendant company duly accepted said charter, and was 
duly organized under and in pursuance of its provisions, and pur- 
chased under the authority above set forth, all property and rights 
of property of said Hadley Falls Company, and has upheld and 
maintained said dam and locks and canals, and has sold, leased and 
used the power created by said dam and property, for mechanical 
and manufacturing purposes, and became, by force of said legisla- 
tion and of said purchase, the successors and representatives of said 
Hadley Falls Company, and owners of all its property and rights. 

That there are now more than twenty different corporations 
dependent upon said water power to carry on their business, which 
is very large, involving ninety-six thousand cotton spindles, twenty- 
four sets of woollen machinery, one hundred and seventeen paper 
engines of large size, besides a very extensive machine shop and 
other machinery, requiring and controlling several millions of dollars 
of capital, and gathering to it, and furnishing business for a grow- 
ing town, which has now a population of about twelve thousand 
persons. 

That it is admitted by the plaintiffs, in their report to the said 
Commonwealth for the year 1866, at page eleven, that the fishway 
sought for " must use a certain amount of water power," and that 
" this would be so much subtracted from the power of the company 
on whose dam it should be placed;" and on page fifty-one of same 
report, that such " fishway would injure or inconvenience the man- 
ufacturer, more or less seriously," both of which statements, the 
defendants say are true. 

That in their very numerous and important contracts of sale and 
lease of water power, the defendants have sold and contracted with 
reference to the present height of their dam, and the power created 
thereby, and the canals of the company, and the wheels and ma- 
chinery of the numerous companies dependent upon said dam and 
the power created thereby, are set to such level as is called for, and 
will be secured by the continuance of said dam and power in all 
respects as it now is. 

That the defendants have guaranteed said mill powers, so to be 
continued, for long terms, amounting to a substantial perpetuity ; 
and that said defendants are now expending a sum equal to nearly 



1871.] SENATE— No. 11. S7 

or quite their original capital, to secure the maintenance of said 
dam ; that its stockholders are numerous ; have purchased said stock 
in reliance upon the terms and stipulations set forth and contained 
in said charters, and of the agreements of the State of Massachusetts, 
also set forth and contained therein. 

That said corporation has been compelled to withhold dividends 
from its stockholders, and will be compelled to withhold them for a 
long time to come by reason of the great expense which they have 
incuiTcd and are now incurring in the performance of the obligations 
which were involved in their acceptance of said charters. 

And the defendants allege that all of these facts were well known 
to the plaintiffs, and were by them communicated to the said Com- 
monwealth, to wit : in the reports of the said commissioners of the 
years 1866, at pages 11, 29 and 41, and of 1867, p. 3. 

The defendants further allege, that the fish rights, both above and 
below said dam, were and are private property ; that those above 
the dam were destroyed by the building of defendants' dam, and 
damages therefor were paid as herein before was alleged. 

That no damages were contemplated or provided for by the leg- 
islature, on behalf of the owners of fish rights below said dam, nor 
have such owners ever, with the knowledge of these defendants, 
claimed that their rights were diminished in value by said dam; 
nor has any claim of damages been in any form made by such 
owners, on account of any damages by them sustained. 

That if fish rights above the dam should be restored by such 
fishway as is prayed for by plaintiff's bill, it would be at a cost of 
about thirty thousand dollars, and they would be the private prop- 
erty of those who have heretofore been paid damages for their 
destruction, as is aboA^e alleged. 

The said defendants admit that shad have been diminishing in 
number in said river for a long time past, to wit, for fifty years and 
more, and that such diminishment has continued since the building 
of their said dam, but they say that such diminishment is due to 
other causes than said dam, to wit, to dams at or near the mouth 
of tributaries of said river, to the water wheels and other machinery, 
and canals below said dam of the defendants at Chicopee, and at 
Windsor Locks, by which a large proportion of the fish passing 
down the river are killed, to the clearing up of forests, and the 
drainage of land in the meadows and swamps, and by the sewerage 
of large towns, and to other causes, the same and similar to those 
which had driven the salmon out of said river before the building of 
defendants' dam, and for which these defendants are not responsible. 

And the defendants say that by reason of the facts herein before 



38 LNLAND FISHERIES. [Jan. 

stated, and especially because they and the said Hadley Falls Com- 
pany (which last named company, the defendants in all respects, as 
to property, rights, powers and privileges, represent), have per- 
formed on their part, in all things, the conditions and requirements 
of the contract set forth and contained in said charters ; the 
legislation of said State referred to and relied upon by the plaintiffs, 
in so far as it requires or authorizes the plaintiffs to require the 
defendants to build a fishway over their said dam, at the expense of 
said defendants, is as to them, unconstitutional, invalid and void ; 
and further say that the plaintiffs are without equity, and that the 
relief prayed for by them is against equity ; and defendants pray 
that they may be hence dismissed with their costs. 

HOLYOKE WATER POWER COMPA^NT, 

By F. Chambeelix, Attorney. 
Filed March 14, 1870. 



Issue joined March 14, 1870 
Copy. 



Attest: , Cleric. 



Supreme Judicial Court. Suffolk Couxtt. 

Theodoee Lyman and others. Commissioners of Inland Fish- 
eries on behalf of the Commonicealth of JIassachusettSj vs. The 
HoLYOKE Water Power Company. 

BRIEF OF DEFENDANT. 

I. What are the preliminary facts ? 

The case made by the bill, answer and report, finds that the 
" Hadley Falls Company " was empowered by its charter, duly 
granted by the legislature in 1848, to build and maintain a dam 
across the Connecticut River, as the same was built by that com- 
pany and is now maintained by these defendants, " upon condition 
that said company should pay to the owners of fishing rights exist- 
ing " (at that time) " above said dam such damages as should be 
awarded by the county commissioners of the counties in which 
such rights existed." 

That said company accepted said charter ; was duly organized 
under its provisions, built the dam authorized by the Act, and duly 
paid all damages to owners of fishing rights above it as required 
by their charter. 

That said company expended (including damages to owners of 
fishing rights) over two millions of dollars in carrying out the 



1871.] SENATE— No. 11. 89 

purposes for which they were chartered, and failed ; and that in 
1859 the defendant company was duly chartered, organized, and 
became by special authorization of said legislature and by contract 
with said Hadley Falls Company, owners of said dam and the 
water power created thereby, and of all property, rights, powers, 
&c., which had belonged to said Hadley Falls Company. 

That the defendant company was authorized to uphold and 
maintain said dam, and to purchase, hold, lease, or sell, all the prop- 
erty, rights, &c., of said Hadley Falls Company, and that they 
have so purchased, held, &c., and are now in all respects, by force 
of said legislation and purchase, the successors and representatives 
of said Hadley Falls Company, and owners of all its property 
and rights. 

That the plaintiffs are Commissioners of Inland Fisheries, duly 
clothed with all the powers vested in them by the legislation to 
which they refer in their bill ; that they have required the defend- 
ant company, at its own expense, to build a fishway over its dam, 
and that the defendants have so refused to comply with such 
requirement, that unless they are exempt from obligation so to 
build such fishway on account of the matters set up in their 
answer, decree should be entered against them. 

II What is the legislation relied upon by the plaintiffs ? 

The legislation to which they refer is the Act of the year 1866, 
entitled "An Act concerning the obstructions to the passage of 
fish in the Connecticut and Merrimack Rivers," and subsequent 
Acts upon the same subject-matter. 

This legislation, under the fostering care of the plaintiffs has been 
extraordinarily progressive. 

The first Act referred to (1866) is carefully prepared, and duly 
authorizes the commissioners to examine the several dams on the 
rivers of the State, and after notice to the owners of the dams, to 
determine and define the mode and plan upon which suitable and 
sufficient fishways should be constructed. (Ch. 238, sec. 2, of laws 
of 1866.) The third section of that Act requires them to submit a 
statement of their plans and methods to the commissioners of New 
Hampshire for their approval. 

The fourth section requires them to furnish a copy of the plan 
adopted, after the same shall have been approved by the commis- 
sioners of New Hampshire, to the dam owner, and file copies in 
the office of the secretary of the State, with an affidavit that it has 
been furnished to the proprietor. 



40 INLAND FISHERIES. [Jan. 

The fifth section provides that .where the owners of dams consent 
to build, the commissioners may contract with them. 

The sixth section authorizes the commissioners to prescribe in 
writing the times when they shall l^e kept open and unobstructed. 

The seventh section provides that if any proprietor shall refuse 
or neglect to agree with the commissioners to build, &c., for thirty 
days after plan is duly furnished him, the commissioners may con- 
struct the fishway at his expense. 

The eighth section provides, that whenever in the construction of 
any fishway^ the property of any person not liable by law to provide 
a fishway around his dam^ shall be taken for the purpose of a fish- 
way^ the commissioners shall assess cornpensation to such person 
and give him a right of appeal. 

The eight remaining sections of that Act are not important in 
this connection. 

In 1867, by chapter 344 of public Acts, the powers of the com- 
missioners were somewhat enlarged. By the first section of that 
Act, they are authorized to examine all dams and give notice to 
proprietors of defects in fishways and to prescribe in writing what 
repairs may be necessary and what changes, if any, should be made 
for improving said fishways ; and by the second section proprietors 
of dams are exposed to a penalty of fifty dollars a day if they shall 
fail to keep open or maintain fishways, &c. 

In 1869, by chapter 384 of public Acts, the powers of the com- 
missioners are so enlarged that they quite closely resemble the 
paternal authority exercised by an absolute monarch in the earlier 
centuries. The first section of that Act gives name to the laws as 
to fish culture, &c 

The second, gives name to the commissioners and provides that 
they shall be three in number, and be appointed by the governor 
and council, and hold ofiice for five years. 

The third section provides that "each may personally or by 
deputy enforce all laws regulating inland fisheries, &c." 

The fourth is so important that I quote it enth-e — it provides 
that " whenever either of said commissioners find that there is no 
fishway or an insufficient fishway in or around a dam where the 
law requires a fishway to be kept and maintained, he may at his 
discretion enter with workmen and materials upon the premises 
of the person or corporation required to maintain said fishway, 
or cause one to be constructed where none exists^ at the expense of 
said person or corporation^ and may take if necessary the land of 
any other person or corporation^ not obliged by law to maintain 
said fishway, provided compensation shall be rendered to the 



1871.] SENATE— No. 11 41 

owner thereof, in the manner provided in relation to land taken for 
highways, and said expense shall be a charge against said person or 
corporation required by law to construct and maintain such fish- 
way^ to be recovered in an action of contract in the name of the 
Commonwealth^ with cost and interest at the rate of twelve per 
cent.; provided that when a fishway has been constructed in ac- 
cordance with the provisio7is of this section^ said commissioners 
shall not require the alteration of the same by the owner of the 
dam, within five years of the completion of the sameP 

As this gives absolute power to each commissioner, controlled 
only by his discretion, it is difficult to see how it could be enlarged, 
unless by omitting the pro\dso, so that a new and imj^roved fish- 
way might be required every year, if the commissioners should be 
so fortunate as to devise a real or fancied improvement. 

It will be readily seen that the case of the plaintiffs resting upon 
this legislation is one which may involve the entire property of a 
water power company like the defendants^ if it is constitutional in 
itself, and if the company is without such chartered franchises or 
contracts as exempt it from this absolute and unlimited control. 

Effective provision for the passage of fish up and down the dam 
of these defendants — thirty feet high — about one thousand feet 
long — and water varying from no depth at all on the crest of the 
dam, to twelve feet of water, is a difficult and expensive matter. 

The mode and manner in which it can be done, has not been so 
determined that it is at present beyond a theory ; and before it is 
accomplished to the satisfaction of all three of these commissioners, 
it may be necessary to build a fishway extending the whole length 
of the dam or to construct a canal on an inclined plane around the 
dam, of such length as to render the flow of water in it compara- 
tively moderate. 

III. The defendants do not question the law as stated by this 
Court in Yinton vs. Wild (9 Pick. 87) that " owners of dams hold 
their rights, to maintain them, subject to such regulations as the 
legislature shall from time to time prescribe for the preservation of 
fish, &c." But if necessary for the purposes of their case, they 
would question the right of the legislature to delegate this power, 
" from time to time to regulate, &c.," so absolutely as to put such 
regulations entirely within the discretion of any 07ie of a board of 
commissioners appointed by the governor and council, from tenn 
to term of five years' duration. 

Upon such position the defendants believe they might success- 
fully resist the enforcement of that legislation, but fortunately they 
6 



42 IiNLAND FISHERIES. [Jan. 

are not compelled to rest upon this j^oint and have no occasion to 
press it beyond this mere suggestion. 

lY. The defendants claim that the case made by the bill, an- 
swer and report is, in all its essential features, like that of Com- 
monwealth vs. The Essex Company (13 Gray. 239). 

See provisions for damages in the two charters. H. F. Co.'s 
charter, sections 4 and 5, and recital of Essex Co.'s charter, 13 
Gray, 244. 

In comparing the two cases it will be unnecessary to consider the 
liability of the Essex Company to build a fishway, under their 
original charter, as it is quite evident by reference to the case, that 
that had no legitimate bearing upon the result. 

The Court upon page 250, 13 Gray, decline to express an opinion 
upon the question whether the legislature could have required that 
company to have built other fishways : " If it could be shown that 
effectual ones could have been provided at a reasonable cost,^^ for 
reasons which appear i?i their construction of the additional Act. 

At the time the additional Act was passed in favor of the Essex 
Company, their dam had been in operation some time with the 
fishway prescribed, which had proved to be unsuitable or insuf- 
ficient to accomplish the purpose of providing for the passage of 
the fish. (13 Gray 250, 251.) 

The company then needed and asked for legislative aid to enable 
them to increase their capital stock. 

They were in precisely the same position in all material respects 
as the Hadley Falls Company, when it needed and asked for a 
charter. 

The one company was asking for a charter, and the other for 
increased power under a charter already granted. In both cases 
the legislature had the power to regulate and adjust all conflicting 
rights, whether public or private, connected with, or which would 
grow out of the granting of the franchise, and they exercised it in 
both instances in precisely the same manner. 

In the one case the increase of capital was granted, substituting 
" for the public right intended to be provided for by the fishway, a 
provision for the payment of damages by the company to every 
riparian owner of fishing rights along the river above the dam., 
giving them a remedy against the company where none existed 
before," &c. (13 Gray, 251) ; and in the other the original grant of 
the charter was made with precisely the same arrangement and 
provision. 

In both cases the charter, and the increased capital, were ac- 



1871.] SENATE— No. 11. 43 

cepted and the conditions imposed by the legislature were per- 
formed by the grantees of the franchises. 

The indemnity in both "cases was equally broad, being a pro- 
vision for the payment of damages by the company to every ripa- 
rian proprietor above the dam, and in both cases a large amount 
was paid as such damages, and all parties provided for by the legis- 
lature, were paid. 

If it be said that in this case it appears that the fish were some- 
what diminished below the dam, the answer is, that for various and 
quite obvious reasons that cannot properly distinguish this case 
from the other or vary the result. 

(a.) The same fact existed in the Essex Company's case, al- 
though not specifically found — perhaps for the reason that it was 
there as here quite immaterial. 

(b.) The same thing necessarily exists where a fishway in its 
best conditions takes the place of the broad stream. The passage 
is somewhat impeded, as is suggested by the late chief justice. (13 
Gray, p. 249.) 

(c.) A slight but appreciable diminution is all that is found 
here, and that upon evidence which was " very conflicting," and 
the finding was based upon the testimony of one of the commis- 
sioners ; against the testimony of practical men eminently intelli- 
gent upon the subject, and against the fact that no riparian pro- 
prietor below the dam was ever known to make such claim. 

(d.) If there was practical damage which could be estimated, 
the parties who sustain it are the only ones who can avail them- 
selves of that fact, and the proper remedy for them, if they can be 
convinced that they are damaged and ask relief, is to give them 
right to prove their damages in some proper manner, as those above 
the dam were permitted to do, and secure compensation, and not 
compel these defendants to lose the benefit of the large damages 
they have paid to those above the dam whose fisheries were de- 
stroyed, and restore to those parties at great expense that for 
which they have been paid. 

(e.) Neither of these classes had valid claims for damages ex- 
cept as the legislature should and did provide. (13 Gray, 249.) 
The power to regulate the public right and to provide remedy for 
such private parties as in the judgment of the legislature would be 
seriously and practically damaged, was entirely with the legislature 
and they have exercised it. The considerations suggested by the 
Court in the Essex Company's case at page 251 seem quite conclu- 
sive. 

(/.) In addition to the public benefits expected from the building 



44 INLAND FISHERIES. [Jan. 

up of a large manufacturing town, the legislature may have be- 
lieved that private riparian owners below the dam would be quite 
as much benefited by the increased markets which they would find 
for such fish and other products as they would have, as they would 
be possibly damaged by the diminished number offish. 

Finally, this whole matter rested in the discretion of the legisla- 
ture, and they have exercised it. 

The proposition to take from these defendants the valuable right 
which they acquired by the payment of damages to private owners 
above the dam, and restore to such owners that for which they 
have been fully paid, is quite as extreme a case as that put by this 
Court in 13 Gray, 253, as an illustration of improper and unconsti- 
tutional legislation. 

Y. This case differs — ^favorably for the defendants — fi-om the 
Essex case in one particular. 

In that case the legislature had provided by direct enactment 
that the Essex Company should build a fishway, &c,, or forfeit the 
penalty named. It was clear that the discretion and judgment of 
the legislature had been brought to bear upon the question, whether 
under all the circumstances of the case that company ought to be 
compelled to build. 

Here there is no direct legislation pointing to these defendants, 
and while the o-eneral lans^uage of the statutes is broad enoucrh to 
include them, it is at least doubtful whether the legislature in either 
of the statutes authorizing the plaintiffs to compel the building of 
fishways, designed to have them require the defendant company 
to build such fishway at their ow)i expense. 

The only statute (ch. 238 of 1866) which is clearly broad enough 
to embrace this company, contains provisions (see section 8) au- 
thorizing the fish commissioners to award damages to any person 
whose property is taken to build a fishway, where such person is 
not by law liable to build one. 

That the legislature did not intend to compel the defendant to 
build at its own expense, is rendered probable by the documents 
which the plaintiff put into the case on the hearing. 

In an opinion of Mr. Loring dated Oct. 16th, 1865, addressed to 
the fish commissioners and appended to Senate document No. 8 of 
1866, referred to generally at the hearing, on pp. 50, 52, is the fol- 
lowing statement : 

" The charter of the Hadley Falls Company required them to 
pay the owners of fish rights existing above their dam, such dama- 
ges as the county commissioners should award. I understand that 



1871.] SENATE— No. 11. 45 

these damages have been paid to the claimants. I can discover no 
reason why the requirement of the legislature complied with by 
the corporation, should not exempt them from further liability to 
construct. 

" I think it does, and that the Hadley Falls Company cannot be 
required to contribute to the construction of a fishway over or 
around their dam." And, again on the same page, " the cost of 
constructing such fishways at Holyoke and at Lawrence must, I 
think, be paid by the State." The fish commissioners themselves, in 
their report of 1866, at page 29, and of 1867, at page 3, express 
substantially the same opinion. 

The Essex Company constructed at small cost a structure, which, 
though approved by the county commissioners, was really worth- 
less, and the fisheries above the dam were ruined, but until the 
legislative provision was made, which grew out of the petition for 
increase of capital, the owners had no remedy. That company re- 
mained under the obligation to support and maintain that worth- 
less fishway, till they compromised their liability by dividing with 
the State the expense of the fishway recently built by or under the 
direction of the plaintifi*s. 

This was probably a good arrangement for the Essex Company, 
and if the defendants were bound to maintain any structure for 
the purposes of a fishway, they would be glad to make a similar 
arrangement and be relieved of such a liability, but this company 
has done all that was required of it, and, as before stated, is com- 
pletely within the authority of the case in 13 Gray. 

VI. Aside from Ihe case of the Essex Company in 13 Gray, the 
authorities are full, clear and numerous which sustain the propo- 
sition, that the legislation in question is, as against this defendant, 
unconstitutional . 

In the case Boston and Lowell Railroad Company vs. Salem and 
Lowell Railroad Company et al.^ 2 Gray, 34, this court states 
the principle thus : " When a contract has been made by the le- 
gislature, upon considerations of an equivalent public benefit, and 
where the gi-antees have advanced their money upon the faith of it, 
the State is bound by the plain principles of justice, faithfully to 
respect all grants and rights thus created and vested by contract." 

Reference is there made to the cases Piscataqua Bridge vs. New 
Hampshire Bridge, 7 N. H., 35; Livingston vs. Van Ingen, 9 
Johns, 507 ; Fletcher vs. Peck, 6 Cranch, 135. 

In the case Central Bridge Corporation vs. City of Lowell, 15 
Gray, 106, 115, 116, this court held that a statute (St. 1843, ch. 50) 



46 INLAND FISHERIES. [Jan. 

much less clear and direct in its terms and significant as a contract 
than the charter of the defendants, constituted an agreement and 
contract between the City of Lowell and the Central Bridge Cor- 
poration if accepted by them respectively. 

See also Old Colony Railroad vs. Plymouth, 14 Gray, 155. 
Abbott's Digest, Law of Corporations, p. 159, sees. 133, 134 ; p. 
160, sees. 135, 136 ; p. 161, sec. 142 ; p. 162, sec. 145 ; p. 165, sec. 
166 ; p. 171, sec. 220 ; p. 172, sees. 223, 224, 225 ; p. 313, sec. 2. 
M'Gee vs. Mathis, 4 Wallace, 143; Von Hoffman vs. City of 
Quincy, id., 535. 

The cases in Connecticut : 

Hartford Bridge Company vs. East Hartford, 16 Conn. 149; 
East Hartford vs. Hartford Bridge Company, 17 Conn. 79 ; Enfield 
Toll Bridge Company vs. H. & N. H. R. R. Co., 17 Conn. 40; 
Washington Bridge Company vs. State, 18 Conn. 53, were ably. 
argued and very fully considered by the highest court of that State, 
and have been several times referred to by this court with approval. 

In the case cited from 16 Conn. R., where a charter of a bridge 
company was amended by imposing new burdens on the company 
which would supersede the necessity of a neighboring ferry, and 
directing that the ferry should be discontinued, was accepted and 
carried into effect, it was held that it constituted a contract, equally 
obligatory upon the State as the provisions of the original charter, 
and there being no sufficient power of appeal reserved, the legisla- 
ture could not re-establish the ferry without the consent of the 
company. 

The case was carried to the supreme court of the United States, 
and is reported in 10 Howard, 511. The head-note is as follows : 
" The legislature having ordered a ferry which came in competition 
with a toll bridge to be discontinued, in consideration that the pro- 
prietors of the bridge would incur certain expenses for the public 
benefit, and on the faith of such discontinuance, those expenses 
having been incurred, held, in conformity with the decision of the 
highest court of the State, that the legislature could not restore the 
ferry without Adolating the constitution of the State." 

In the case cited from 17 Conn, it was held that, " a grant by 
the legislature in consideration of expenses to be incurred by the 
grantees, was in the nature of a contract, which could not be im- 
paired, and that the court should give to its stipulations such con- 
struction as would carry them into full effect. (17 Ct. 54, 55, 
57, 58.) 

The case cited from the 18 Conn, was quite closely analogous to 
the one under discussion. The plaintiffs had a grant to build a 



1871.] SENATE— No. 11. 47 

bridge over the Housatonic River in 1802, and by additional Acts 
in 1808, the grant was made exdusive for six miles on the river, 
provided that nothing contained in the grant should be construed 
to impair the rights of persons navigating the river. 

The company built their bridge and kept it in repair according 
to the terms of their charter until 1845 when the legislature passed 
a resolve, requiring them to construct a draw^ &c., of a specified 
kind, and providing that the plaintifi*s should be deprived of their 
power to take tolls as formerly until the draw should be completed 
and accepted. The plaintifi*s failed to comply with the resolve. 
Quo warranto was brought, it was held that the resolve was not 
binding upon the bridge company. 

YII. The plaintiffs ask this court, as a court of equity, to compel 
the defendant immediately to expend a sum of money large in amount 
(ranging as estimated by Mr. Chase from $25,000 to 830,000). 
This is sufiiciently serious to a corporation already overweighted 
by the great expenditures which are at present resting upon it, in 
taking care of its dam and of the power which it was incorporated 
to create and preserve and dispose of, for the benefit, not simply 
of its stockholders, but (in many ways) of the State; but beyond 
this is a contingent liability, quite overshadowing this present out- 
lay in importance. 

The defendants believe this to be but the beginning of an experi- 
ment which is likely not only to involve a much larger outlay than 
that now talked of, and quite disproportionate to the expected 
benefit, but also a serious diminution of their water power. 

The defendants (on page 7 of the answer) set forth "that in 
their very numerous and important contracts of sale and lease of 
water power they have sold and contracted with reference to the 
present height of their dam and the power created thereby^ and the 
canals of the company and the wheels and machinery of the nu- 
merous companies dependent upon said dam and the power created 
thereby, are set to such level as is called for, and will be secured 
by the continuance of said dam and power in all respects as it now is." 

" That the defendants have guaranteed said mill powers so to be 
continued for long terms, amounting to a substantial perpetuity, 
and that said defendants are now expending a sum equal to nearly 
or quite their original capital, to secure the maintenance of said 
dam ; that its stockholders are numerous, having purchased said 
stock in reliance upon the terms and stipulations set forth and con- 
tained in said charters, and of the agreements of the State of Mas- 
sachusetts also set forth therein." 



48 INLAND FISHERIES. [Jan. 

We are aware that it is found by the report that " the fishway 
which the commissioners now require the defendants to build and 
maintain, would not diminish the water power of the defendants, 
except when they may desire to add to the permanent height of 
their dam by flash-boards." 

But if the plaintiffs are entitled to the relief for which they ask, 
it must be on the ground of the validity of the legislation upon 
which their powers in this particular and with reference to this 
company rest ; and if that legislation refers to this company, and 
is to be construed as the plaintiffs' claim — and as it must be to en- 
title them to the relief for which they pray — then, as we have al- 
ready shown, any one of the plaintiffs may order a new fishway 
every five years, with reference solely to that which he thinks will 
most effectually restore fish to the head waters of the Connecticut, 
and without regard to the necessities of the defendant company, or 
of the numerous companies dependent upon them, and relying upon 
their contracts. 

Such a final result (which the defendants believe to be not an 
improbable one if the plaintiffs have full power in the premises) 
will change the status of the defendants, and instead of the owner- 
ship of a valuable water power, which they are managing under 
their charter for the benefit of their stockholders, they will become 
proprietors of an extensive ^/j5A-23ond, which they will improve under 
the direction of each of the fish commissioners, for the benefit of 
riparian proprietors, who have already been once paid for that 
which is to be restored to them ; and there will result not only an 
impairing of the obligation of the particular contract contained in 
the charter of the defendants, but of all the contracts relating to 
water power which the defendant company, relying upon that con- 
tract, has made with their grantees and lessees. 

WILLIAM GASTON, 
F. CHAMBERLIN, 

For Defendant, 



1871.] SENATE— No. 11. 49 



Supreme Judicial Court. Suffolk, ss., Junk, 1870. 

Theodore Lyman and Others, Commismoners on Inland Fish- 
eries^ on behalf of the CommonweaXth of Massachusetts^ v. 
HoLYOKE Water Power Company. 



COMPLAINANTS' BRIEF. 

I. (1.) Every owner of a dam within this Commonwealth holds 
it under the condition that a sufficient passage-way must be pro- 
vided for migratory fish, over or around such dam ; and this public 
right has always been subject to the regulation of the legislature. 
Stoughton V. Baker, 4 Mass. 522; Commonwealth v, Chapin, 5 
Pick. 202 ; Commonwealth v, Alger, 7 Cush, 98 ; Vinton v, Welsh, 
9 Pick. 87. 

(2.) St. 1869, ch. 422, sect. 1, under which this suit is brought, 
is, therefore, within the authority of the legislature, and a proper 
means of regulating and enforcing the public right. 

(3.) No owner of a dam can be exempted from his obligation to 
provide suitable fishways, except by express statute provision. 
Commonwealth v. Essex Co., 13 Gray, 248. 

(4.) There is no such express exemption in St. 1848, ch. 222, 
incorporating the defendant company. 

(5.) But it is contended on the part of the defendants that the 
provision of their charter, allowing the riparian owners on the Con- 
necticut River, above their dam, upon application to the county 
commissioners, to claim damages for injury to their fishing rights, 
exempted them from all obligations as to fishways. 

(6.) This position is untenable : — 

First. Because the language of the statute does not amount to 
an express exemption within the nile of Chief Justice Shaw in the 
case last cited, and, in the absence of such provision, the intention 
of the legislature, in compelling the defendants to pay damages, 
must have been to add an obligation supplementary to the public 
right already existing. 

Second. Because the words of the statute, " damages to fishing 
rights," cannot be held to indicate that their total destruction was 
contemplated. 

Third. Because, if there is any doubt upon the point in question, 
the words are to be taken most strongly against the defendants in 
this statute, since it is of the nature of a public grant. Cleveland 
7 



50 INLAND FISHERIES. [Jan. 

V. Norton, 6 Cush. 384 ; Commonwealth v. Roxbury, 9 Gray, 492 ; 
City of Boston v. Richardson, 13 Allen, 156. 

The last case limiting the rule to doubtful cases like the present. 

fourth. Because it has been expressly decided by this Court, 
that an authority to erect a dam across a river, without any allusion 
to fishways, does not carry with it, by implication, the repeal of 
laws requiiing fishways. Yinton v. Welsh, 9 Pick. 87 ; Cleveland 
V. Norton, 6 Cush. 383. 

Fifth. Because a comparison of similar charters with the statute 
in question leads to a conclusion adverse to the defendants, such 
comparison being the safest guide in determining the intention of 
the legislature. Mendon v. "Worcester, 10 Pick. 235 ; Goddard v. 
Boston, 20 Pick. 407 ; Commonwealth v. Bailey, 13 Allen, 545. 

A similar statute is St. 1848, ch. 295, which empowered the Essex 
Company to increase its capital stock, on the condition " that said 
company shall be liable for all damages which shall be occasioned 
to the owners of fish-rights existing above said company's dam, by 
the stopping or impeding the passage of fish up and down the 
Memmac River by the said dam." This act was in addition to the 
act of incorporation, which expressly provided for the maintenance 
of a fishway in the dam of said Essex Co. St. 1845, ch. 163, sect. 5. 
In this case the best fishways possible proved insirfficient, and the 
legislature therefore ordered the payment of damages; yet, even 
then, they did not entirely dispense with the fishway, — on the con- 
trary, the statute contains the words " stopping., or impeding^ the 
use of the latter showing conclusively that fish were still supposed 
to find a passage over the dam; and if such were the intention of 
the legislature in that case, after the company had made the best 
fishway they could, a fortiori must it be the true construction of 
the charter in the case at bar, where no fishway has ever been tried. 
(Report, page 6.) 

Sixth. Because the point last mentioned is in accordance with 
the doctrine of Commonwealth v. Essex Co., in discussing the veiy 
act just referred to, where the Court expressly reserves the ques- 
tion : " Whether, if the fishways actually provided had proved 
wholly unfit and inadequate for their purpose, and other measures 
could be provided within a reasonable cost, which could be shown 
to be probably eflfectual, the legislature could, by further legislation, 
have required the company to construct such other fishways;" 
thus implying that it could so require ; and if the legislature may 
require a change in fishways already existing, it certainly may com- 
pel corporations to construct them where they have never existed. 
This question, there reserved, arises directly in the case at bar, for 



1871.] SENATE— No. 11. 51 

the case where no fishway is provided, is equivalent to the case 
where the fishways are "totally unfit and inadequate." In this 
connection, too, it is significant that the additional act as to the 
Essex Co. (just referred to), did not repeal the section in the char- 
ter requiring a fishway, though it did require payment of damages ; 
on the contrary, it seems to have still contemplated the mainte- 
nance of fishways, saying that the clause directing fishways in the 
original charter should be no bar to the claim for damages. 

Further, as the right to a free passage for fish is a public benefit, 
it cannot be waived or extinguished by any neglect upon the part 
of the Commonwealth in any particular case. Stoughton v. Baker, 
4 Mass. 522 ; Commonwealth v. Alger, 7 Cush. 100. 

Finally, the language of the Court throughout the opinion, in 
Commonwealth v. Essex Co., indicates that the fishways were still 
to be maintained. 13 Gray, 246 and 253, on which last page the 
words are "all those riparian owners whose fish-rights would be 
damnified by the defendants' dam with the fishway as it was.'''' 

Seventh. Because there is no provision in St. 1848, ch. 223, giv- 
ing any damages to fish-right owners on the river, except those 
above the dam, in this Commonwealth. But the dam would injure 
fish-rights in the States of Vermont and New Hampshire, as well 
as those above provided for, and it cannot be contended that within 
this Commonwealth, whose courts have always recognized the pub- 
lic right to a free passage for fish, a law could be enacted which 
would destroy this public privilege in adjacent communities; and 
although within this Commonwealth the right of eminent domain 
has been exercised for the purpose of establishing great corporations 
for the public benefit, and although the legislature, within its own 
jurisdiction, could require citizens to surrender their rights for the 
public good, yet there would be no obligation upon the fish-right 
owners in other States to give up their privileges or to accept com- 
pensation therefor, — nor can the fact that they have never claimed 
damages lead to any inference against them, since they would not 
be bound to take cognizance of our statutes. 

These owners in other States are therefore still entitled to have 
the best fishAvays possible in all dams within the limits of Massa- 
chusetts. 

II. (1.) Another ground upon which the decision in Common- 
wealth V. Essex Company (which case must necessarily be the main 
reliance of the defendants) rests, is the fact that compensation had 
been awarded to " all those riparian owners whose fish-rights would 
be damnified by the defendants' dam." 13 Gray, 253.. 



52 INLAND FISHERIES. [Jan. 

(2.) But in the case at bar, the Court have found it to be a fact 
that fish-rights below the dam are injured, as well as those above ; 
and for such injuries no compensation has ever been made. (Re- 
port, page 2.) 

Nor is the fact alleged in the answer of the defendants, that no 
claim has ever been made, by the owners below the dam, upon them 
for damages, of any legal significance, since they had no remedy 
save through the interposition of the legislature. Commonwealth 
V. Chapin, 5 Pick. 199. 

Hence it follows, that such owners still have rights which a court 
of equity must regard and enforce, when the legislature designate 
the appropriate method, as in the statute under which this suit is 
brought. 

(3.) Viewing the charter of the Hadley Falls Co. in the light of 
this fact, and considering it as a contract between the corporation 
and the public, it must be construed : 

(a) Either as a contract in which the public right of fishways 
was not expressly excluded, and therefore, by implication, a contract 
to which the public right was an incident, or (b) else it must be 
held unconstitutional and void, as to owners of fish-rights below the 
dam, under article ten of the Declaration of Rights. Boston & 
Lowell R. R. Co. v. Salem & Lowell R. R. Co., 2 Gray, 1. 

If proposition (a) be true, no legislation, regulating the incident 
right reserved in the charter itself, can be retroactive and unconsti- 
tutional, as the defendants claim in their answer, page 9; and if 
proposition (b) be true, it would be the duty of the legislature to 
interfere, by amendment or repeal, and it would be fairly within its 
powers under Rev. Stat., ch. 44, sect. 23. Durfee v. Old Colony 
R. R. Co., et al. ; 5 Allen, 239, and cases there cited ; Crease v. 
Babcock, 23 Pick. 334. 

CHARLES ALLEN, Attorney- General, 
MOSES WILLIAMS, Je., 

For Complainants, 



1871.] SENATE— No. 11. 53 



Supreme Judicial Court. Suffolk, ss., June, 1870. 

Commissioners of Inland Fisheeies v. Holyoke Water 
Power Company. 



SUPPLEMENTAL BKIEF FOR THE COMPLAINANTS. 

By St. 1866, c. 238, the plaintiffs were required to determine the 
plan for fishways, and submit them to the owners of dams in the 
Connecticut and Merrimack Rivers, and it thereupon became the 
duty of such owners to build the fishways accordingly. By St. 1869, 
c. 422, the plaintiffs were authorized to enforce in equity the con- 
struction of the fishways by the owners of the dams ; and the 
present bill in equity is brought for that pui-pose, against the pro- 
prietors of the dam at Holyoke. 

The question is, whether the defendants are bound to build a 
fishway to allow the passage of fish above their dam across the 
Connecticut River at Holyoke. 

I. The general duty of those who build or own dams to provide 
and maintain suitable fishways is as firmly established as it is possi- 
ble for any doctrine of law to be established in Massachusetts. 
This has been declared in several adjudicated cases. 

"Every owner of a dam holds it on condition, or perhaps under 
the limitation, that a sufiicient and reasonable passage-way shall be 
allowed for the fish. This limitation, being for the benefit of the 
public, is not extinguished by any inattention or neglect, in compel- 
hng the owner to comply with it." Stoughton v. Baker, 4 Mass. 528. 

In that case, there was a neglect to build a fishway from 1634 to 
1789 ; but it was held that the duty continued. See also. Common- 
wealth V. Chapin, 5 Pick. 199 ; Vinton v. Welsh, 9 Pick. 87 ; 
Commonwealth v. Essex Co., 13 Gray, 248. 

The legislature have the right, from time to time, to provide the 
manner in which this duty shall be performed ; and they have con- 
stantly exercised this right, by requiring the owners of existing 
dams, in numerous instances, to build such fishways, at their own 
expense, in such a manner as should be approved by committees 
named by the legislature, or by the selectmen of towns ; and by 
authorizing and directing committees named by the legislature, or 
provided to be chosen by towns, to go on themselves and construct 
such fishways. 



54 INLAND FISHERIES. [Jan, 

Illustrations may be found in the following Statutes : Sts. 1780, c. 
16, passed Feb. 19, 1781 ; 1786, c. 7, passed June 27, 1786 ; 1787, c. 
10, § 2, passed July 4, 1787 ; 1787, c. 33, § 1, passed March 1, 1788 ; 
1787, c. 35, § 2, passed March 19, 1788; 1787, c. 58, §§ 1, 2, passed 
March 28, 1788 ; 1789, c. 5, passed June 15, 1789 ; 1789, c. 8, § 2, 
passed June 20, 1789 ; 1789, c. 43, § 4, passed Feb. 27, 1790 ; 1789, 
c. 51, § 3, passed March 4, 1790 ; 1790, c. 8, § 1, passed June 19, 
1790 ; jSts. passed Feb. 22, 1792, §§ 1, 2 ; March 9, 1792, § 4; Sts. 
1796, c. 83, passed March 10, 1797 ; 1797, c. 69, § 5, passed March 
1, 1798; 1797, c. 70, § 1, passed March 1, 1798; 1797, c. 74, § 1, 
passed March 2, 1798 ; 1798, c. 29, § 5, passed June 28, 1798 ; 1798, 
c. 78, passed March 1, 1799 ; 1798, c. 83, § 3, passed March 1, 1799 ; 
1799, c. 68, passed March 1, 1800; 1799, c. 76, passed March 4, 
1800 ; 1800, c. 67, passed March 1, 1801 ; 1801, c. 59, § 2, passed 
March 3, 1802 ; 1801, c. 66, § 5, passed March 6, 1802; 1802, c. 57, 
§ 2, passed Feb. 9, 1803 ; 1802, c. 63, § 3, passed Feb. 12, 1803; 
1802, c. 71, § 4, passed Feb. 16, 1803; 1803, c. 108, § 4, passed 
March 3, 1804; 1803, c. 152, § 5, passed March 9, 1804; 1804, c. 
134, § 1, passed March 16, 1805; 1805, c. 76; 1806, cc. 28, 117; 
1808, c. 91, § 8; 1812, c. 106; 1829, c. 55; 1839, c. 134; 1843, c. 
20 ; 1845, c. 79. 

The above is not a complete enumeration, but only includes 
selected instances to show the legislative view of the public import- 
ance of preserving our river fisheries, by means of fish ways. There 
can be no doubt at all, in view of this great, though incomplete, 
enumeration of statutes, that, up to the time of the granting of the 
charter on which the defendants rely, the legislature always con- 
sidered that their right to order the construction of fish ways in 
existing dams was full and complete. 

II. It has likewise long been the established law of this Common- 
wealth that a grant of authority by the legislature to erect a dam 
across a river is to be construed to be under an implied condition to 
keep an open fishway, unless there is some express provision to the 
contrary. Stoughton v. Baker^ 4 Mass. 528. Y^inton v. Welsh, 9 
Pick. 87. Commonwealth v. £^ssex Co., 13 Gray, 248, 249. 

III. The question therefore speedily comes down to this : 
Whether there is anything in the charter upon which the defendants 
rely, showing that they were to be exempt from the duty of main- 
taining a fishway ? 

There is no express provision in the charter to that eff*ect. And 
there is no provision from which such exemption can be inferred, 



1871.] SENATE— No. 11. 55 

unless it is the provisions respecting the payment of damages to the 
fishing rights above the dam. 

These provisions are as follows : — 

St. 1848, c. 222, § 4. "Said corporation shall pay such damages 
to the owners of the present fishing rights, existing above the dam 
which the said company is herein empowered to construct, as may 
be awarded," &c. 

§ 5. "The Hadley Falls Co., [the defendants' predecessors] or 
any of the owners of said fishing rights, may, at any time, apply to 
said county commissioners to proceed and ascertain the damages to 
said fishing rights; ***** and the said commissioners shall 
determine and award the damages to said fishing rights within sixty 
days," &c. 

Does this language necessarily imply that they were to be relieved 
from the duty of building any fish way ? 

rV. There are certain general considerations which will aid in 
construing the charter. 

a. The preservation of the fisheries is for the benefit of the pub- 
lic. The right to have the fish pass up the river is a public right. 
It is true that the right to catch the fish is in the owners of the soil ; 
but the right to have the fish there so that they can be caught is a 
public right. See CommomceaUh v Essex Co.^ 13 Gray, 247. 

b. All grants of the legislature, surrendering public rights, are to 
be construed strictly against the grantees. The grantees will take 
no powers by implication which are not necessary for carrying the 
purposes of their charter into eflTect. 

"The grant of privileges and exemptions to a corporation is 
strictly construed against the coi-poration, and in favor of the public. 
Nothing passes but what is granted in clear and explicit terms." 
Ohio Life Ins. Co. v. Deholt^ 16 How. 435. See also Mills v. St. 
Clair to., 8 How. 581. 

"Any ambiguity in the terms of the contract [charter] must 
operate against the adventurers, and in favor of the public ; and the 
plaintiffs can claim nothing that is not clearly given them by the 
act." Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 793 ; cited 
and approved in Charles Miver Bridge v. Warroi Bridge^ 11 Pet. 
.544. 

"All grants of privileges are to be liberally construed in favor of 
the public, and, as against the grantees of the monopoly, franchise 
or charter, to be strictly intei-preted. Whatever is not unequivo- 
cally granted in such acts is taken to have been withheld ; all acts of 
incorporation, and acts extending the privileges of incorporated 



66 INLAND FISHERIES. [Jan. 

bodies, are to be taken most stroDgly against the companies." 
Sedgw. on St. & Const. Law, 338, 339, and seq., and numerous cases. 

" In all grants from the government to the subject, the terms of 
the grant are to be taken most strictly against the grantee and in 
favor of the grantor — reversing the common rule as between indi- 
viduals — on the ground that the grant is supposed to be made at the 
solicitation of the grantee, and the form and terms of the particular 
instrument of grant prepared by him, and submitted to the govern- 
ment for its allowance." Commonwealth v. Jioxbury, 9 Gray, 492. 

For example : an authority to fill up land and construct a wharf 
does not extinguish a highway. People v. Lamhier^ 5Denio, 1. 

V. The language of the charter upon which the defendants rely 
by no means implies that the damages therein provided were to be 
paid for the destruction of the fisheries above. The building of the 
dam, even with a fishway, would necessarily cause great injury to the 
fisheries, and this injury would be a proper subject of compensation. 

It was known in 1848, when this charter was granted, that no 
fishway would leave the fisheries above such a dam unimpaired. 
This had been ascertained and brought to the attention of the legis- 
lature by the experience of the Essex Company. 

If it had been expressly provided in the charter of the Hadley 
Falls Co., that they should build a fishway, it would still have been 
necessary to have the same provision which now exists, or one sub- 
stantially similar, for compensation to the owner of the fishing 
rights above the dam for the injury done to them. 

The provision for compensation is, to say the least, just as con- 
sistent with the idea that there should he a fishway as thxit there 
should not he one. How, then, can it be contended that it implies 
authority to build the dam without a fishway ? 

The language of the charter contemplates a partial injury to the 
fishing rights rather than their total destruction. If it haG been 
intended to provide compensation for their destruction, it would 
have been more natural to say that the county commissioners should 
ascertain " the value of said fishing rights," rather than " the dam- 
ages to said fishing rights ; " and that they should award such value, 
rather than the damages to them. 

There is every presumption that the legislature would not intend 
to allow the total destruction of the fisheries, when they might be 
partially preserved by a fishway. 

JVo dams in this State, so far as known, had heen allowed to he 
huilt without fishioays. The universal rule, it is believed, was the 
other way. Simply omitting to provide for a fishway in terms, 



1871.] SENATE— No. 11. 67 

raises no presumption that none was intended, because the well 
known law, constantly practised on, was that fishways could be 
expressly ordered afterwards if the owners of the dam should neg- 
lect their duty. What reason is there to suppose that this dam 
alone, of all the dams in the Commonwealth, was to have no fish- 
way? 

A taking under the right of eminent domain, must be limited to 
the necessity. No greater rights can be taken than are required. 
So in construing a grant, the authority will be deemed to have been 
limited to the necessity. 

The exigencies and requirements of the business of the corpora- 
tion did not require a dam without a fishway. The report of the 
case expressly ^nds that the fishway would not diminish their water 
power ; unless, indeed, they should wish to add to the permanent 
height of their dam by flash-boards. There is nothing to show that 
they have any right to add such flash-boards at any time. The 
charter, § 3, gives them the right to build a dam of a certain height. 
In the absence of any express finding to the contrary, it may be 
presumed that their present dam is as high as they have a right to 
make it. There is certainly no presumption to the contrary. 

It would require a very strong case indeed, to carry with it a pre- 
sumption that the legislature intended absolutely to close the 
Connecticut River against the passage of fish. 

There is every reason to suppose that a regard for the public 
right of our own citizens in the river fisheries, as well as the comity 
due to the people of Vermont and New Hampshire, would prevent 
the legislature from granting leave efiectually to close up the river, 
unless there was an overpowering necessity for it. In the present 
case, no such necessity existed. No such privilege was essential to 
the purposes for which the charter was granted to the Hadley Falls 
Co. Those purposes can be just as well subserved, (or, in any event, 
almost as well,) with any existence of a fishway. Why then should 
the language of the charter be construed to give them a greater 
privilege than what the language naturally implies, or their necessi- 
ties require ? 

The damages which they have paid must be presumed to have 
been estimated for the injury done by the dam with a fishway in it. 
It must have been assumed that they would do their duty. It was 
their duty to build a fishway; and the tribunals had a right to 
assume that they would do it. If by their delay has happened 
[and there can be no means of ascertaining that the fact is so] that 
they have been compelled to pay more damages than would have 
been awarded in case of a prompt compliance on their part with 
8 



58 INLAND FISHERIES. [Jan. 

their duty, this is of no legal significance. The tribunals may pos- 
sibly have had a prophetic doubt as to the disposition of the 
company to do their duty. Legally, it is to be presumed that the 
damages were assessed upon the right basis. The defendants can- 
not be heard to say that they have paid too much damages. 

VI. The fisheries below the dam are also injured by the construc- 
tion of a dam without a fishway. No compensation being provided 
for this injury, the charter was to this extent unconstitutional. A 
grant of a right to take private property under the right of eminent 
domain must make provision for compensation, or else it is void. 
Boston S Lowell Railroad v. Salem <& Lowell Railroad^ 2 Gray, 37. 

If, therefore, the true construction of this charter is, that it 
authorized a close dam, without a fishway, the charter was uncon- 
stitutional, so far as the exemption from the liability to make a 
fishway is concerned, because it injured the fishing rights below the 
dam without providing compensation. 

It is no answer to say that with a fishway the dam would still have 
injured the fisheries below. That fact does not appear; and on the' 
report cannot be assumed to exist. It may well be that the fishway 
would have rendered any injury to the fisheries below wholly 
unappreciable. 

Nor is it any answer to say that it does not appear that the 
owners of those fishing rights have ever claimed that they were 
damaged. It does not appear that they have not so claimed ; nor is 
it the duty of these plaintiff's, or of the Commonwealth, to ascertain 
and prove how the fact is. 

If the Commonwealth finds that a grant of a charter is used 
otherwise than according to the intention, and that larger privileges 
are assumed and exercised than the charter warrants, or that a 
charter by inadvertence is made to confer unconstitutional powers, 
it may and ought to interfere and recall the corporation to its duty, 
under the constitution and laws, whether anybody is injured by the 
unwarranted assumption of authority or not. 

A fortiori^ when not only the private rights of citizens, but the 
public rights are infringed. 

The Commonwealth does not stand in the position of a stranger 
who cannot question the extent of authority exercised. 

The fact that the fisheries below are injured by the construction 
of a dam without a fishway, and that no compensation was provided 
for such injury, is an additional argument to show that the true con- 
struction of the charter did not authorize the construction of such 

a dam. 

CHARLES ALLEN, Attorney- General, 



1871.] SENATE— No. 11. 59 

Supreme Judicial Court. August 31, 1870. 

In the case of The Commissioners of Inland Fisheries v. The 
Holyoke Water Power Co., the clerk was ordered to enter a De- 
cree for the Complainants. 



Brief statement of the grounds and reasons of the decision. 
The statutes under which the Respondents have been required to 
make a fishway in their dam were within the constitutional power 
of the legislature and did not impair the obligation of any contract. 



60 INLAND FISHERIES. [Jan. 



[E.] 
ON THE POSSIBLE EXHAUSTION OF SEA FISHERIES. 

SECOND NOTICE. 



Investigation before the Committee on Fisheries. 

The Committee on the Fisheries to whom was committed the 
petition of T. D. Eliot and twenty-five other petitions in aid, ag- 
gregate number of names 3,023, asking for a Prohibitory Fishery 
Act; also, sixty-two remonstrances, aggregate number of names 
7,958 ; also, William L. Bradley Manufacturing Company at Wey- 
mouth ; Pacific Guano Company at Wood's Hole ; Cape Cod Rail- 
road Company, and Resolutions of the' Gloucester Board of Trade 
agamst the same, have duly considered the same and submit the 
following Report : — 

The petitioners claim that several modes of fishing now in use, 
as by traps, pounds, purse-seines, sweep-seines and gill-nets are 
increasing in the waters along the shores of this Commonwealth, 
and that these novel modes of fishing are fatally prejudicial to the 
production and increase of fish, and ask the legislature to enact 
such laws as will protect the fish and those of the community that 
are intierested in their continuance. 

In the hearings before the Committee on the Fisheries there was 
no evidence to convince them that there is any necessity for the 
passage of such an Act as is asked for by the petitioners. It aj)- 
peared in the evidence that the scup, tautog, sea bass and striped 
bass in Buzzard's Bay have diminished, during the last few years, 
comparatively few having been caught in that locality, while in 
other places outside of that bay the fishermen have seen no dimi- 
nution in these species, but rather an increase. It does not neces- 
sarily follow that when fish leave a locality which they have long 
been accustomed to visit annually, that they have been driven away 
by over-fishing. Changes are taking place from year to year, and 
during the past fifty years many species that were abundant, and 
in their annual migrations visited our waters and remained on our 
coast during the summer, have long since disappeared, and years 



1871.] SENATE— No. 11. 61 

have passed away and not one of them is seen in our waters, while 
others have appeared that are new, and increase in numbers annu- 
ally ; others, again, have disappeared and after many years the same 
species has returned in great abundance and again become annual 
migratory species, visiting our shores each season. Such have been 
the changes long before a weir, trap or pound existed in Massachu- 
setts waters, and while nets were used only to a limited extent. 

The cause of the diminution of fish in Buzzard's Bay may be a 
scarcity of the bait on which they are accustomed to feed, as large 
beds of mussels on which some of these species feed have been 
killed by star-fishes (five-finger, so called by the fishermen). The 
refuse of manufactories, as copper works, gas works, and prussian- 
blue works, and other deleterious substances thrown into the water, 
have also affected the clams and other species of mollusca (shell- 
fish). These causes may have tended to diminish the numbers of 
fish that in past years have visited this locality. But the great 
cause that has driven many species from our waters is the bluefish, 
which appeared on the coast of Massachusetts, south of Cape Cod 
some thirty-five years ago, but did not appear until 1847 north of 
the Cape ; wherever they appear they drive away nearly all other 
species of fish. During their stay they are caught with hooks, nets 
and weirs. 

North of Cape Cod the weirs catch mostly bluefish, which are 
taken in great numbers as they go in shore. One weir at Eastham 
caught last season no less than 65,000. When the north-east storms 
of autumn drive into our bay the colder waters, the bluefish leave, 
and other species of fish which were driven away by them on their 
arrival, re-appear, as the mackerel, menhaden, and others that are 
marketable. The bluefish have been no doubt the principal cause 
of the diminution of other kinds of fish during their stay on our 
coast. 

The weirs south of Cape Cod catch mostly bait fish, as hemng 
(alewives; and menhaden, which are sold to vessels belonging to 
Gloucester, as bait for their George's Bank fishery. If this mode 
of fishing were discontinued, Gloucester vessels must be without 
bait for a part of the season and the large fishing fleet of Cape Ann 
must lie still. 

Scup, tautog, sea bass, striped bass, and other kinds of fish that 
are not used for bait are caught by the weirs in our waters south of 
Cape Cod only in small quantities, and as a secondary and inciden- 
tal matter ; the amount of these kind of fish caught by such weirs 
is too small to have any considerable effect upon the increase or 
diminution of these species. As soon as the bluefish arrive on our 



62 INLAND FISHERIES. [Jan. 

coast, about the first of June, these weirs are taken up ; being made 
of net which is easily destroyed by the bluefish, it would not pay 
to keep them down longer. 

The geographical distribution of fish along our coast is so exten- 
sive, their numbers are so great and the number of eggs produced 
by them is so vast, requiring only a small percentage to mature in 
order to overstock the waters, that no general legislative enactment 
can be needed for their continuance or increase. The compara- 
tively small quantity taken by man can have but little effect in 
diminishing their numbers, and but little tendency to exterminate 
the race. Though in small bays and arms of the sea, it might be 
possible in certain seasons to produce, by overfishing, a percepti- 
ble diminution of the fish then visiting them, yet the evidence 
brought before the Committee failed to show that such had been 
the case in any of the bays in this Commonwealth, and if there 
were in any season a diminution from such cause in our bays they 
would probably be replenished in the succeeding season by a fi-esh 
supply from the ocean. 

Whenever fish have left any bays or localities permanently it has 
been in most cases from causes unknown to us, and Acts of legisla- 
tion would be powerless to bring them back. • 

In view of the evidence produced before them, the Committee 
see no reason for recommending prohibitory legislation, as asked 
for by the petitioners. 

The Committee may here call attention to the British Commis- 
sion, appointed to inquire into the sea fisheries of Great Britain and 
Ireland, whose report was laid before Parliament in the year 1866. 
This commission consisted of Professor Thomas H. Huxley, Messrs. 
George Shaw Lefevre and John Caird, who are among the ablest 
men in Great Britain in their several departments. It visited 
nearly all the fishing localities of Great Britain and Ireland and the 
adjacent waters; it examined a vast number of witnesses, asked 
and received answers to nearly sixty-two thousand questions, and 
probably made a more thorough investigation than was ever before 
made by any commission. Though many of the fishing localities 
examined by them had been fished over for many centuries, and 
though in addition to our modes of fishing by weirs, nets and 
seines, the heann trawl is there used, which is far more destructive 
to fish and their spawn and young than any mode of fishing em- 
ployed or approved by us, yet that commission came to the unani- 
mous conclusion that there was no danger to the sea fisheries, 
either in the open sea or in bays and arms of the sea, from over- 
fishing, and that any restriction was unnecessary and useless, and 



1871.] SENATE-^No. 11. 63 

they recommended that all the existing prohibitory or restrictive 
statutes of Great Britain should be repealed. 

The Committee, in conclusion, report unanimously that the 
petitioners have leave to withdraw. 

Per order of the Committee, 

N. E. ATWOOD, Chairman. 



FISHERIES ON THE COAST OF MASSACHUSETTS. 



[Remarks of Mr. Atwood, of the Cape District, in relation to the petition to prohibit 
Net and Seine Fisheries.] 



Senate Chamber, April 19, 1870. 

The report (leave to withdraw) on the petition of T. D. Eliot 
and others, came up for acceptance by special assignment. 

Mr. Hawes, of Bristol, arose and said, that as a large number of 
the petitions asking for a prohibitory fishery Act came from his 
District, he was not ready to vote until he could have some further 
explanation. 

Mr. Atwood, of the Cape District, Chairman of the Committee 
on the Fisheries, arose and spoke at length, substantially as follows : 

Mr. President — As so many petmons have been presented to this 
legislature and referred to your Committee on the Fisheries, asking for 
an Act to prohibit certain modes of fishing now in use in the waters 
of this Commonwealth, I feel it to be a duty incumbent on me, as 
a representative of a district extensively engaged in this branch of 
industry, to occupy some time in giving somewhat in detail the 
reasons why your Committee have unanimously reported leave to 
withdraw. 

Early in this session, on the 12th of January, there was presented 
and referred to the Committee on the Fisheries, the petition of Charles 
W. Lovett, Jr., and 64 others, claiming to be citizens and tax-payers 
of this Commonwealth, asking for an Act to prevent the taking of 
certain salt water fish in weirs and pounds, and also that the taking 
of fish known as Spanish mackerel and striped or sea bass, in any 
seine or net, may be prohibited ; but that the same may be taken 
between the first day of June and the first day of December, by 



64 INLAND FISHERIES. [Jan. 

hook and line only. On the following day the petition of T. D. 
Eliot and 1,225 others was presented and referred, sund subsequently 
a large number of petitions in aid of the same, claiming that the 
practice of pound fishing, trap fishing^ drag mining^ purse 
seinmg and giU fiettitig^ is seriously and fiatally prejudicial to the 
production and increase of fish. They pray that the legislature 
will, by suitable enactments, protect said fish and those of the com- 
munity interested in their continuance and productioii, from these 
novel and improper modes of fishing. Also there has been pre- 
sented and referred a large number of remonstrances against the 
passage of any general prohibitory AcL For their number. I refer 
senators to the printed report of the Conmiittee. 

Though the two first petitions were not in aid of each other, 
still they were aiming to accomplish the same object, and Hbssf 
seemed to be inseparably connected ; so much so that your Com- 
mittee deemed it expe<iient to hear the parties who would represent 
both at the same time. Accordingly all the parties were notified, 
and the hearing commenced on the 15th of February. Xo less 
than eighteen sessions of the Committee were given to these hear- 
ings, during which time many witnesses testified, and very little 
was learned fi-om the evidence that proved to the Committee that 
fish were being exhausted. All agreed that the scup, tantog, 
sea bass and striped bass, had within a few years diminished in 
Buzzard's Bay ; but failed to show that over-fishing was the cause 
of the diminution. Like the many fishermen that I know, the wit- 
nesses were not well acquainted with the habits of fish. They 
study them no ferther than l^y contribute to their pecuniary 
interest. At most they possess only a local knowledge of the fish 
with which they come in contact. They prosecute the fisheries for 
their support, and do not make the habits of fish a special study. 
Sir, if any other matter upon which there were more than 11,Ch>0 
names on the petitions and remonstrances should come before the 
le^slature, what would the Committee expect? They would 
expect that experts and men acquainted with all the practical work- 
ings, would come before them. An ordinary conmiittee on the 
fisheries might expect men to come before them on a subject of so 
much imj:kortance as our sea mheries, that possessed a knowledge 
of the geographical distribution, migrations, habits, food, time of 
depositing their spawn, growth and development of their young, as 
far as it could be known, and besides all, the changes that have 
taken place during a long series of years. That if certain species 
had diminished in Buzzard's Bay, from whatever cause, is there 
danger of the race being exterminated ? The fishes that inhabit 



1871.] SENATE— Xo. 11. 65 

our waters, and in their migrations visit our coast, differ widely 
from those that were upon our fishing grounds when I first engaged 
in the fisheries. 

Mr. President, allow me to lay aside the evidence before the 
Committee, while I briefly allude to the changes that I have noticed 
during a long life of practical experience in the fisheries. 

I can go back to no earlier date than 1816, when I entered the 
fishing boat and followed fishins: as a business for a period oi fifty- 
one years, during which time there have been many changes. I 
shall speak of only a few species. The scup, that has been so 
abundant for many years south of Cape Cod, extends to Florida, 
and is caught in great numbers along the coast. It finds a ready 
sale in New York and other markets, but in Boston market it is not 
known as a marketable species, and is seldom seen there. Only a 
few straggling specimens venture into the colder waters north of 
Cape Cod. Witnesses stated before the Committee that they had 
a tradition informing them that scup first appeared in Buzzard's 
Bay in 1793. If so, I ask was it then that they first came into ex- 
istence, or did they come from some other locality ? I have been 
informed that in examining the old shell heaps that have been 
deposited by the aborigines of this country many years ago, the 
bones of this species have been found, showing that they were here 
before this country was settled by Europeans. If they were here 
at that time, is it to be supposed that they were driven away by the 
Indians with their rude implements of fishing ? 

When I first engaged in the fisheries, and for many years after, 
there was a species of mackerel that annually visited om* waters, 
known by the name of Spanish Mackerel, that were abundant. It 
was not the species now called by that name. It was about two- 
thu'ds the size of a common mackerel, known to science by the 
name of Scomber Dekayi. (Excuse me for using classic names ^ 
I do it for the reason that there are so many local names for the 
same species, I fear that I may not be understood by any who may 
be acquainted with ichthyological science.) This species, although 
plentiful for many years, has long since disappeared, and I have 
not seen a single specimen for the last twenty years. They 
disappeared long before a weir, trap or pound was used in our 
Massachusetts waters. The cause of their leaving us is unknown. 
We can assign no reason. There have also been great changes in 
our common mackerel. While in some years they come to us in 
great abundance, in other years they are comparatively scarce. In 
1831, 383,559 barrels were packed and inspected in this State, after 
which there was a falling off in the catch, so much so that from 
9 



66 INLAND FISHERIES. [Jan. 

1839 to 1844, the number of barrels caught did not exceed 75,000 
in any one year, for five years in succession. In 1841 the quantity 
caught was only 50,992 barrels. They have since increased. Dur- 
ing the last ten years the catch has been, with the exception of two 
years, upwards of 200,000 barrels annually. Last season it was 
234,000 barrels. It will be seen that the catch of fish from year to 
year differs as widely as the product of our land. 

About 1840 there appeared on our coast, south of Cape Cod, 
large quantities of shad, which appeared to be the same species 
with those that visit the Connecticut and Merrimac Rivers annually 
(Alosa 2^roestabilis). Fishermen from Massachusetts, Connecticut 
and Rhode Island engaged in this fishery, and found it profitable. 
In 1842 an Act was passed by the legislature to prohibit fishermen 
from other States, from fishing for shad within a line drawn from 
Monomoy Point to Point Gammon. I myself engaged in this 
fishery, but we found there was no need of the passage of such an 
Act. The shad appeared in small numbers, so that not enough 
were caught to pay expenses. They were also caught in large 
quantities in the waters north of Cape Cod. They then disappeared, 
so that only a few straggling specimens have since been caught in 
these localities. Where were they before they appeared in our 
waters ? "What was the cause of their coming ? Where are they 
now ? All that can be said in answer, I can say in three words — 
they are gone. 

Sir, I ask to be allowed to allude briefly to two species of fishes 
that are not caught by any mode of fishing that we are asked to 
prohibit. I do so for the reason that no less than four times, peti- 
tions have been sent to the legislature asking for an Act to prohibit 
fishing with trawl lines (so called) in Massachusetts Bay. The 
report from the Committee has always been "leave to withdraw." 
In 1858, when the report came up in the House of Representatives, 
it was discussed at length, and it was there stated that if this mode 
of fishing was not prevented by legislative enactment, soon had- 
dock would be as scarce as salmon. The report of the Committee 
was accepted, and this mode of fishing has been in use since that 
time, and this species has been increasing from year to year, until 
they have increased in vast numbers, so much so that they are too 
plenty for the fisherman or dealer, and during the spawning season, 
which is the spring, they are sold at a low price, — from two dollars 
down to fifty cents per 100 lbs. But it may be said the consumer 
pays a high price. I cannot help that ; it is not that that I am 
discussing. I am trying to show the danger of exterminating the 
race of fish, if there is any, and do not intend to leave my subject, 



1871.] SENATE— No. 11. 67 

lest I may be called to order. When I first engaged in the fisheries, 
haddock was scarce on our coast, and in winter sold much higher 
than cod. They did not increase for many years after. They, 
however, became plentiful when the trawl line was first used, — 
about 1850, — and every year they seem to be increasing. On the 
4th of last March, when a large number of fishing boats were out, 
the catch was larger than I ever knew before. The next day, 5th, 
there was brought to this city and sold at Commercial Wharf, of 
cod and haddock, 621,953 lbs., as taken from the books of dealers 
that bought that day, — a larger quantity than ever was sold of all 
kinds of fresh fish in a single day since Boston has been a city. 
What has been the cause of so great an increase ? If I was asked 
how their numbers could be diminished, I have two ways now sug- 
gested to my mind : one is to introduce the beam trawl which has 
not been used in our waters, which is a large net-bag with a long 
beam across its open mouth, which is kept up some two feet from 
the bottom by an iron frame-work at each end of the beam, and as 
it is dragged along by the fishing boat the fish pass into the net and 
are caught in the pockets at the sides as they attempt to pass out. 
This net being dragged over the bottom would destroy the young 
fish as it passed over them, and might tend to diminish their num- 
bers. 

One other way would be to hire the fisherman to leave them, and 
to stand back and fold his arms and see nature perform her wonder- 
ful work without the interference of man. The present mode 
of fishing, catches vast quantities of a species of flat fish {Platessa 
dentata) which no doubt fed upon the spawn of haddock when 
the hand-line only was in use. 

One other species, our common halibut, which is caught in the 
same way, have greatly diminished. When I first engaged in this 
fishery, Boston was supplied wholly with halibut caught betweeen 
Cape Cod and Nantucket Shoals. The demand was limited, — only 
a few could be sold. There were no railroads. Boston only wanted 
enough to supply the city and the surrounding towns. As facilities 
for transportation increased, and ice began to be used to keep them, 
they were sent far away. The supply would not meet the demand. 
The fishery was prosecuted by vessels from Gloucester, on George's 
Bank, and also on Brown's Bank, the western coast of Nova Scotia, 
and upon the Banks of Newfoundland, and voyages have been made 
to Greenland, and halibut have been caught in quantities as far 
north as the latitude of 68°, on the western coast of Greenland. 
They seem to be decreasing on all the fishing grounds. But I must 
pass them by and leave senators to decide whether or not overfish- 



68 INLAND FISHERIES. [Jan. 

ing Ijas been the cause of the increase of the one and the diminution 
of the other of these two species. 

It appeared in evidence before the Committee, that the fish 
known as the squetague is increasing in the vicinity of Buzzard's 
Bay, and along the shore south of Cape Cod. Some sixty years 
since it was vastly abundant in the southern part of Massachusetts 
Bay, and although absent for so many years it seems to be return- 
ing to its former haunts. 

But the great change that has taken place in our fisheries has 
been caused by the return of the bluefish. This species was abun- 
dant on our coast many years ago. We are informed that in a 
journal of the first settlement of the island of Nantucket, written 
by Zacheus Macy, 1792, and contained in the Massachusetts Histor- 
ical Collections, he says, a great pestilence attacked the Indians of 
that island in 1763 and 1764, and that of the whole number, 358, 
222 died. In that year, he says, the bluefish disappeared, and I 
have no knowledge of a specimen being seen here for more than 70 
years. We are informed that they are found in other localities. 
They are said to occur on the western coast of Africa, around the 
island of Madagascar, and also at Australia ; if so they are found 
over a wider geographical range than any other species with which 
I am acquainted, inhabiting the waters in both the torrid and tem- 
perate zones. After an absence of so many years they returned, as 
appeared in evidence before the Committee, about 1832, along the 
shores south of Cape Cod. They did not come north of the Cape 
so as to afiect our fisheries, until 1847, when they appeared in vast 
abundance, and drove away from our bay nearly all other species. 
I was at that time engaged in fishing for mackerel with nets. This 
was the last of our catch ; and every year since, when our fisher- 
men are engaged in this fishery, they appear. I have known them 
to appear as early as the second day of June, but usually they do 
not come until a few days latter, — from the fifth to the fifteenth. 
When they first appeared in our bay I was living at Long Point 
(Provincetown), in a little village containing some 270 population, 
engaged in the net fishery. The bluefish affected our fishery so 
much, that the people were obliged to leave the place. Family 
after family moved away, until every one left, leaving that locality, 
which is now a desolate, barren and sandy waste. 

These fish not only depopulated our bay of nearly all other 
species, but they depopulated my village and my home. It was a 
matter of surprise to your Committee, that men professing to be 
acquainted with fish, should come before them and say they did not 
know that bluefish ate any other fish but menhaden ; and as they 



1871.] SENATE— No. 11. 69 

are not an edible species, no matter how many they destroyed ; and 
also say they did not know that they drove other species away. 
Call them, sir, by whatever name we please ; whether bluefish, of 
Massachusetts Bay; snapper, of New Bedford; horse mackerel, 
on the shores of Rhode Island ; or tailor, in Delaware and Chesa- 
peake Bays, they are the same Temnodon saltator still, and deal 
out destruction and death to other species in all the localities they 
visit. 

One other, a species of flat fish which is called dab or plaice at 
home, but when we bring it to Boston and ofier it for sale we call it 
Turbot. It is the Platessa ohlonga. This species was exceedingly 
abundant along our shores before the bluefish came. It is a bottom 
fish, and does not come so directly in contact with the bluefish as 
top-water swimmers ; still it has almost wholly disappeared, owing 
to the bluefish having destroyed its favorite bait, which is the com- 
mon squid. It seems to be nearly exterminated in the waters north 
of Cape Cod, only a few being seen. 

The striped bass have diminished in the vicinity of Cape Cod, as 
the bluefish have destroyed the bait upon which they fed. 

The so-called Spanish mackerel (^Cyheiim maculatum) Cuvier 
says, is an inhabitant of the Caribbean Sea, extending southward 
to the coast of Brazil. Dr. Holbrook mentions it in his Fishes of 
South Carolina, as being found in the waters along that coast. It 
has wandered northward until it has reached the southern coast of 
Massachusetts, and even specimens have been taken north of Cape 
Cod. It sells in our market at a higher price than any other species. 
It is no doubt an excellent fish, but is probably not so much better 
than our common mackerel as the prices seem to indicate. It has 
been selling in Quincy Market, for a few summers past, at from fifty 
cents to one dollar per pound. It has been increasing in our waters 
for a few years, and the prospect is it will continue to increase, 
until it will be a fishery of considerable importance. There is no 
danger of destroying them by catching them by any way we can, 
when it is only the few wanderers that come to us from the locali- 
ties where they inhabit. I think they need no legislative protection 
to increase their numbers. 

Such are a few of the many changes that have taken place since 
I first engaged in the fisheries. Time will not allow me to go into 
detail of the some 150 specks found along our New England coast. 
They may be said to form one great chain, each species being a 
separate link, having its own peculiar history and habitudes. 

I pass noAV briefly to notice their fecundity. We look with won- 
der and astonishment at the provisions in the animal economy. 



70 INLAND FISHERIES. [Jan. 

How vast is the number of eggs produced by a single fish ; hundreds 
of thousands, which, if any considerable percentage should come to 
maturity, the waters would be filled to overflowing. 

Take a few thousand specimens and allow ten per cent, to come 
to maturity, multiply them together for ten years, and how great 
would be the number. And what is that, when compared with the 
countless myriads that swarm our coast annually ? their numbers 
how vast ! Human ingenuity has invented no means by which they 
can be enumerated; their numbers are only known to Him who 
created them, who feeds them with a bountiful hand, and watches 
over them with more than parental care. 

Sir, if we study them with reference. to their longevity we see 
marks on them indicating age ; the loss of fins ; scars where they 
have at some time received wounds, that have permanently healed ; 
marks of physical debility, which appear to be the result of advanced 
age. I regret to say that no Linnaeus or Cuvier, nor all the researches 
of science have ever been able to give us any indication by which 
we may know the age that fishes live, with any degree of certainty. 
They pass off and on the coast as the seasons change, during their 
natural lives, however long they may be. 

In view of all the foregoing facts, where is the danger of exhaust- 
ing our fishes ? I fail to see the danger of extenninating them. 

The British Commission that was appointed in 1863 to investigate 
the fisheries of Great Britain and Ireland, visited nearly all the 
fishing places in the United Kingdom, and made a thorough investi- 
gation ; asked and received answers to nearly sixty-two thousand 
questions. They came to the unanimous conclusion that there was 
no danger of exhausting the fisheries, either in the open sea or in 
any of the arms or estuaries along the coast, with all that man could 
do, and finally made their report to the British Parliament in I8660 

There were persons that did not wholly agree with the British 
Commissioners. One of the most prominent is J. B. A. Rimbaud, 
who has published a work on fishes of the southern coast of France. 
Himself a fisherman, he says that the migratory species that go ofi" 
to sea in schools and return each season cannot be diminished by 
over-fishing, but local fishes can be exterminated by constantly fish- 
ing for them, and such has been the case in the locality where he had 
been accustomed to fish. 

Of the two I allow Rimbaud to be the best qualified to judge, as 
he has acquired his knowledge by practical experience in the fish- 
eries, and the British Commissioners had gained their information 
from others. Sir, I hope I may not be charged with undervaluing 
scientific research ; no man has a higher appreciation of the labors 



1871.] SENATE— Xo. 11. 71 

of scientific men than myself. Their kindness to me in aiding me 
in my investigations of fishes has laid me under the greatest obliga- 
tions. I owe to them a debt that I can never rejiay. 

Sir, I call attention of senators at this board to the locality where 
Rimbaud has gained his information, — the southern coast of France. 
France on the Mediten-anean, is not like our own coast. There the 
land is high, and deep water near the shores. The area of fishing 
grounds is comparatively limited. Our own coast is low, and shoal 
water extends ofi" a great distance from the shore. Besides that, the 
great chain of banks commencing with Nantucket Shoals and run- 
ning eastward a thousand miles, and terminating with the Great 
Bank of Newfoundland, gives us an immense area of fishing grounds. 

On the coast of France there is not so great change of tempera- 
tui'e in the water from summer to winter, as on our own coast. The 
Gulf Stream comes out through the straits of Florida, running up 
the coast to Cape Hatteras, from whence it turns eastward. As it 
passes, it leaves our New England out in the cold ; its course is on- 
ward until it reaches the shores of Western Europe, making the 
water comparatively uniform through the season. I ask are not the 
fish on the coast of France more permantly local than those on our 
own coast, where there are great changes of temperature from sum- 
mer to winter? Tell me, sir, how many are there of our fishes 
that are not more or less migratory. Senators will see that our 
fishes and fisheries are not like those of Europe. 

Mr. President, lest I may be misunderstood, I desire to define my 
position. I firmly believe there is no necessity for the passage of 
any general legislative Act for the protection and regulation of our 
sea fish and fisheries. If fish have diminished in any of the small 
arms of the sea, I should have no objection to the passage of a local 
Act, provided it did not interfere with the rights of others ; but I 
must confess that I am slow to believe that when fish have left a 
locality, that any Act on our statute books will bring them back. If 
we wish to increase and stock our inland waters, it cannot be 
accomplished without protection. The building of dams across the 
streams, throwing of deleterious substances into the waters have 
diminished the fish. But in the great sea man cannot pollute its 
waters by any thing he can do. 

If this legislature should pass an act to prohibit those modes of 
fishing that have been called by the petitioners novel and improper, 
what would be the practical working ? It would not only aflfect 
those directly engaged in them, but it would have also an indu'ect 
bearing. Th-e large fleet of vessels belonging to Gloucester, are, a 
part of the season, dependent on these fisheries for bait to be used 



72 INLAND FIS SERIES. [Jan. 

in their bank fisheries. The question was asked at the time of the 
hearing before the Committee, how the Cape Ann bank fishermen 
procured their b%it before these modes of fishing came into use ? 
but was not answered. When vessels from Gloucester first engaged 
in the halibut fishery on George's Bank, they met there immense 
shoals of sea-herring {Clupea elongata). They could be taken in 
nets on the top of the water. After a few years they became less 
abundant, and were not seen schooling, but could be caught by 
sinking the nets several fathoms below the surface. Long since 
they have left that locality, and none have been caught there for 
several years. 

Our mackerel fishermen require a large quantity of bait to be used 
in the prosecution of this fishery, which is principally menhaden, 
caught in weirs or seines. Some 7,000 barrels of this fish was used 
by Provincetown vessels engaged in the mackerel fishery last sea- 
son. Their whole catch of mackerel was about 25,000 barrels. 

There is a large amount of capital invested in our fisheries, giving 
employment to a great number of men, who follow a life of hard- 
ship and exposure. They are a useful class of men, as they are 
producers. By their labors they bring to our tables a large amount 
of wholesome and nutritious food, which is a blessing to our people. 
Sir, allow me one brief moment while I allude to the life of a 
fisherman. He may enter the fishing-boat at nine years of age. 
Deprived of the advantages of school education, he follows his 
business from day to day. He may engage in some dangerous voy- 
age. Follow him to the Banks of Newfoundland, where he is not only 
exposed to gales and storms, — he may in some seasons be surrounded 
by enormous icebergs, whose gigantic height and massive bulk add 
to the danger. He is filled with fear lest his little bark may come 
in contact and sink beneath his feet. Besides this, the merchant 
ship, on its passage to or from Europe, may in some thick, dark and 
stormy night, at one stroke put an end to his earthly voyage. What 
hardier occupation, what bolder daring can man display than to lie 
down to rest shrouded in the gloomy solitude of a Newfoundland 
fog. As he leaves the cold, wet and lonesome deck, at the end of 
his midnight watch, worn down by hardships and exposures, he lies 
down upon his bed, and while his cradle is rocked by the mountain 
billows, he courts that sleep that may know no waking. Day after 
day he looks forward with pleasing anticipation to the time when 
his voyage will end ; when he will return ; when he can rest from 
his toils, safe in the bosom of his home. Year after year, as his 
physical energies begin to relax, he dreads it more and more. He 
is still compelled to work for his support, and the support of those 



1871.] SENATE— No. 11. 73 

that may be dependent upon him. Few fishermen get rich, while a 
great many of us remain poor. He may abandon his business and 
stop on shore. With a few nets, or some other implements of 
fishery, he may be able to procure means to supply his wants. 

The great question is. What is the danger of exhausting our fish- 
eries if these modes of fishing are continued ? 

Nets have been used from time immemorial. We have an 
authentic history that has come down to us, that tells us that more 
than 1,800 years ago, "Jesus walking by the Sea of Galilee, saw two 
brethren, Simon called Peter, and Andrew his brother, casting a net 
into the sea : for they were fishers. And he said unto them. Follow 
me, and I will make you fishers of men. And they straightway left 
their nets and followed him. And going on from thence he saw 
other two brethren, James, the son of Zebedee, and John his 
brother, in a ship, with Zebedee, their father, mending their nets ; 
and he called them. And they immediately left the ship and their 
father, and followed him." This not only shows that nets were in 
use ^t that remote period, but that they also needed mending, 
plainly indicating that they were somewhat like our nets. 

From the foregoing considerations that I have so briefly stated, 
your Committee came unanimously to the conclusion that it was 
their duty to report that the petitioners have leave to withdraw. 



The report and speech of Capt. N. E. Atwood are here printed 
entire, because they show the opinions of a man who probably 
knows more of the habits of our cold temperate sea fishes, than 
any one in this comitry. The petition for abolishing weirs, &c., 
ought to have brought out much valuable testimony ; but it proved 
quite otherwise, and a great part of the depositions, during this 
tedious hearing, only exhibited the local ignorance and prejudice of 
the witnesses. And the Chairman was quite right when he said, 
"These witnesses do not know one-half of what they ought to 
know." 

Although nothing can be better than the historical data of Mr. 
Atwood's speech, some criticism may perhaps be allowed on his 
logic. The point of his argument may be put in the following 
syllogism. 1. I have known certain fishes to grow scarce when 
there was no excessive fishing. 2. Scup, tautog, sea-bass and rock- 
bass have grown scarce. 3. Therefore^ these four fishes have grown 
scarce without excessive fishing. But he seems here to assume the 
point in contest, to wit : the cause of the scarcity. Now the report 
10 



74 INLAND FISHERIES. 'Jan. 

admits that scup, tautog, striped bass and sea-bass have, within a few- 
years, diminished in Buzzard's Bay. The very interesting contem- 
porary investigation in Rhode Island* shows, that everybody 
testifies to the " gradual diminution of the number of fish entering 
the bay or river " ; and it further appears that " contemporaneous 
with the introduction of traps was a decrease of fish." The great 
amount of evidence there printed tends to prove that there is no 
lack of proper food for the fish, and that dyes and other impurities 
cast into the bay have not the smallest efiect in driving away the 
fish or in destroying their food. And these results are supported 
by the evidence in the Massachusetts hearing — so far as it goes — 
and by the investigations of the Commissioners of this Common- 
wealth.t How then do the facts stand ? Here are four important 
fishes, of different genera, of different habits, eating to some 
extent, different food ; and these dififerent fishes suddenly agree in 
diminishing, and that diminution is, in some cases at any rate, con- 
temporaneous with the start of trap and weir fishing. In such a 
case, on whom does the burden of proof lie ? Most certainly jt lies 
with the advocates of trap-fishing to show that this method does 
not diminish the fish. 

That this is the view taken by the Rhode Island Joint Commit- 
tee is proved by the vote they recommend, by which trap-fishing 
will be severely curtailed in the Narragansett waters. 

* Report of the joint special committee of the General Assembly of Rhode Island on 
the Fisheries of Narragansett Bay, 1870. 
t Report for 1865, p. 18, p. 53. 



1871.] SENATE— No. 11. 75 



[F.] 

In" the matter of the Application of Allei^- Look and others 
FOR A Lease of Tisburt Great Pond, or Newtown Pond, 

so CALLED. 



Decision of the Commissioners on Inland Fisheries. 

The petitioners and remonstrants having been publicly heard on 
Jan. 25th, 1870, and privately on other occasions, it appears : 

That said pond lies wholly in Tisbury in Dukes County (or, ac- 
cording to some, a small part lies in Chilmark). It is a large sheet 
of water fed by certain brooks, and separated from the sea only by 
a narrow beach. The natural fishery (except perhaps for eels) is 
of small value ; but if a passage be cut through the beach, certain 
fishes will come into the pond, especially herring (or ale wives), 
smelts, striped bass, and white perch. Hence it is plain that this 
fishery is an artificial one and depends on cutting a passage through 
the beach. Therefore the first question is. Who has authority to 
cut said passage? The persons having such authority are the 
commissioners of sewers appointed by the court, who, whenever 
the pond, gets so full as to injure the border lands, may, at the re- 
quest of the owners of said lands, cause the beach to be opened 
and may assess the cost on the said owners. 

In 1861 the Border proprietors through their commissioners of 
sewers, entered into an agreement with certain persons known as 
" Fishermen," who proposed, at proper seasons and with permission 
of said commissioners, to open the beach, in order to catch fish ; 
and they agreed to pay the expense of such opening; and they 
further agreed to bear one-half the expense of putting a dam across 
Quansuc Creek, in order to control the flowage of Black Point 
Pond, which lies to the west of Tisbury Great Pond. The Border 
proprietors of Black Point Pond had been accustomed to drain 
their water through Quansuc Creek into Tisbury Great Pond and 
thence into the sea ; and this dam was to enable them to keep up 
their own pond, when Tisbury Great Pond was lowered. It ap- 
pears, however, that Quansuc Creek was not, at all times, a natural 
communication between Black Point and Tisbury Great Ponds; 
thus in 1815 it was entirely stopped up and so remained for many 
years, until about 1830, when the Border owners of Chilmark Pond, 
lying west of Black Point Pond, caused said Quansuc Creek to be 



76 INLAND FISHERIES. [Jan. 

dug out, so that they might drain said Chilmark Pond, through 
Black Point and Tisbury Great Ponds, into the sea. They so 
drained for eight or ten years, when they abandoned it and cut 
through their beach so as to drain directly into the sea. In these 
premises, it is the opinion of our counsel that neither the Border 
owners of Chilmark nor of Black Point Ponds have legal claim to 
drain through Tisbury Great Pond without permission of its Bor- 
der owners. 

We thus eliminate the rights of drainage of other ponds and 
come to consider the rights of fishery in Tisbury Great Pond itself 
In this respect it does not differ from other so-called " great ponds ; " 
and its fishery is free to the inhabitants. The original grant of 
Lovelace for free fowling and fishing does not strengthen this right, 
which, according to decision of our supreme court, is under con- 
trol of the legislature ; and such control, in regard to fishing, is 
given to the Commissioners on Inland Fisheries by chapter 384 
Acts of 1869. 

We therefore finally come to consider the interests and rights of 
the inhabitants at large, and of the Border owners, in this fishery. 
Unless these last gave their consent, the pond could not be opened 
to the sea, and there would be no sea-fish in it ; consequently the 
almost entire value of .the fishery depends on the voluntary act of 
said owners; and the inhabitants at large have no right in the 
matter. As a matter of fact, the beach would always be opened, 
during the winter and early spring, from time to time, in order to 
prevent the washing of the banks of the pond by excessively high 
water : and it may therefore be admitted that some sea-fishes would 
come into the pond, even though there were no fishermen to pur- 
posely open the beach for them. It would be only to such fishes, 
coming in, so to speak, accidentally, through a passage made simply 
for drainage, that the inhabitants at large could lay any claim; and 
even in this case their claim would be doubtful. But when the 
beach is opened expressly for the entrance of fishes it is plain that 
the fishery is a purely artificial one, and the persons who lawfully 
make the opening have a good claim in equity on the fish. It 
already has been shown that the Border owners are the only persons 
who clearly have the right to cause the beach to be opened by their 
commissioners of sewers. Furthermore, the so-called "Fisher- 
men" have, by their agreement in 1861, a certain right in justice, 
though not perhaps in pure law to participate in the fishery under 
the said agreement. Now nearly the whole of said "Fishermen" 
have joined the border owners in petitioning for a lease to said 
border owners. 



1871.] SENATE— No. 11. 77 

To sum up : it seems that Tisbury Great Pond, in respect to its 
sea-fishery, is to be considered legally by itself, without dependence 
on other ponds ; that the sea-fishery is dependent on those persons 
who can legally open the beach ; that these persons are (certainly) 
the Border owners of the pond, and (perhaps) the body of men 
known as the " Fishermen ; " that nearly the whole of the border 
owners and of the Fishermen have petitioned the Commissioners 
on Inland Fisheries to grant a lease to said Border owners. 

The petitioners agree to take measures for the improvement and 
increase of the fishery under this lease ; by protecting the spawn- 
ing fish and by giving them certain free days on which no fishing 
shall take place. This action looks to an increase of the fishery 
which, according to testimony of old fishermen has declined, one- 
half for the herrings (alewives) and two-thirds for smelts and bass, 
while the white perch are nearly destroyed. 

Inasmuch as there may be a certain justice in leaving the eel 
fishery public, and in allowing the claim of the inhabitants at large 
to a part of such sea-fishes as would come in when the beach was 
opened simply for lowering the water in the pond, it is plainly 
proper to make the rent of the pond payable to the town of 
Tisbury, and in the form of a certain portion of the fish taken ; and 
it is further advisable to leave the taking of eels with pots and 
spears free to the inhabitants at large. 

A lease of said Tisbury Great Pond or Newtown Pond will 
therefore be granted to said Allen Look and others, petitioners, for 
ten years on the following conditions, to wit : — 

1. That the lessees shall place at the disposal of the selectmen 
of Tisbury, for the inhabitants of the town, one-twentieth part of 
the fish taken by said lessees ; or, in place thereof, such commuta- 
tion in money as shall be agreed on by and between said selectmen 
and said lessees. 

2. That said lessees shall neither fish nor allow fishing in said 
pond between Saturday evening at sunset and Monday morning at 
sunrise, of each week. 

3. That the taking of eels with pots and spears shall be free to 
the inhabitants at large except within forty rods of the artificial 
opening through the beach, and except between Saturday evening 
at sunset and Monday morning at sunrise of each week. 

THEODORE LYIVIAN, 
E. A. BRACKETT, 

Commissioners. 
Boston, Februaey 10th, 1870. 



SENATE No. 3. 



Sixth Atstnual Report 



COMMISSIONERS 



INLAND FISHEEIES, 



FOR THE YEAR ENDING JANUARY 1, 1872. 



BOSTON: 

WRIGHT & POTTER, STATE PRINTERS^ 
79 Milk Stkeet {cokser of Federal). 

1872. 



\ 



CO^TE^^TS. 



[For Index to Collection of Fishery Laws, see end of Volume.] 



Page 
Kepoet, 5 

Supplement A. List of Commissioners, 15 

B. On possible Exhaustion of Sea Fisheries, . . 17 

C. Opinion of Supreme Court in Holyoke Case, . . 65 
Appendix. Collection of Fishery Laws. 



Coinmonrpcaltl) of iltaosadjusctts. 



EEPOET OP THE COMMISSIONERS. 



To His Excellency the Governor and Ihe Honorable Council. 

The Commissioners on Inland Fisheries beg leave to present 
their Sixth Annual Report. 

The increase and protection of fresh-water fishes excited no 
interest in this country, until a few years ago. It is true that 
individuals had occasionally attempted to make fish preserves, 
and that a certain number of laws were passed ; the experi- 
ments of Remy had also been repeated with some success. 

But fish culture, as an art, was unknown. Nor was there 
much definite knowledge of the habits and movements of those 
sea fishes which frequent estuaries and in-shore regions. Now, 
all this has changed. There is a general interest in water cul- 
ture, and important experiments have been conducted to throw 
light on it. The in-shore fisheries also, have drawn the atten- 
tion of competent men, who have begun investigations on the 
causes of their decrease, and on the possible remedies. 

'i'he present spirit has risen, as often happens, from a some- 
what remote cause. In 1865, the States of New Hampshire 
and Vermont complained that the shad and salmon, which had 
once been abundant within their borders, had been cut oflf by 
impassable dams at Ilolyoke on the Connecticut and at Law- 
rence on the Merrimack. These dams had been in existence 
for about sixteen years ; and the problem of restoring the fish 
to the upper waters was of course a very difficult one. Two 



6 INLAND FISHERIES. [Jan. 

Commissioners, appointed by order of tlie legislature to inves- 
tigate the complaint, reported in 1866 and gave the histoi«y of 
the rivers and of the decline and partial destruction of their 
fisheries. The report ended as follows : — 

" In order successfully to re-stock the two rivers with shad 
and salmon, it would be necessary that fisliways should be 
built over the dams ; that the pollution of the water should be 
prevented ; that New Hampshire should breed salmon ; that 
Connecticut should forbid the use of weirs and gill-nets, and 
that stringent laws regulating fishing should be passed by the 
States concerned." " If the above conditions were complied 
with, an abundant supply of fish might reasonably be looked 
for within five years, though they would not be so plenty as 
when the country was in its primitive state." 

The legislature, satisfied that an attempt ought to be made 
to restore the shad and salmon to our sister States, ordered the 
appointment of Commissioners whose duty it should be to 
cause fishways to be erected over these dams. The company 
at Holyoke claimed exemption from any such outlay, and was 
at last sued, and, after losing the case, appealed it to the Su- 
preme Court of the United States, where it has not yet been 
tried. On the Merrimack, however, fishways were put up. 
The dam at Lawrence offered quite as great a practical obsta- 
cle as the legal impediment at Holyoke. No book and no me- 
chanic could tell exactly how to make a fishway up which shad 
would pass for so great a distance ; and it has taken several 
seasons of experiment to determine the proper model for such 
a structure. 

Meantime, in the six years that have passed, the question, 
from being a local one, affecting a few dams on a couple of 
rivers, has broadened into general interest. Commissioners 
have been appointed for all the New-England States, as well as 
for New York, Pennsylvania, New Jersey and Virginia. Fish 
culture on a considerable scale, chiefly among the clupeoids 
and salmonoids, has taken its place as a sort of industry, the 
possible increase of such shore fishes as the striped-bass, rock- 
bass, scup, and tautog, and of the white-fish and lake-trout of 
the Western lakes, has been discussed, and, this year, the 
matter has attained such importance, that a commissioner has 



1872.] SENATE— No. 3. 7 

been appointed by the United States to investigate the problem 
in its general form. 

The work of the Massachusetts Commissioners has been of 
five kinds : first and originally to overcome, if possible, the ob- 
structions on the Connecticut and Merrimack ; secondly, to fur- 
nish, when called upon, plans of fish ways, and to see that they 
are properly constructed over or around dams on rivers and 
streams where owners are required by law to provide a passage 
for migratory fish ; thirdly, to introduce new fishes, and to 
make and publish experiments in water culture ; fourthly, to 
investigate the fisheries in salt and brackish water, near the 
mouths of streams ; and, fifthly, to examine and to give ad- 
vice upon questions coming before the legislative committee on 
fisheries. In this last duty they have been able to save no in- 
considerable sum of money, by speedily settling matters which 
otherwise would have led to expensive investigations. The 
Commission during the six years of its existence, has not been 
a costly one. Of the five men who have held the office, three 
never took any pay. 

Shad hatching was continued this year, at Holyoke, by the 
Connecticut Commissioners, and many millions of embryos 
were turned loose. At North Andover, Mr. A. C. Hardy also 
carried on hatching with the following results : — 



INLAND FISHERIES. 



[Jan. 





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1872.] 



SENATE— Xo. 3. 



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10 



INLAND FISHERIES. 



[Jan. 



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1872.] 



SENATE— Xo. 3, 



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12 INLAND FISHERIES. [Jan. 

The total catch was 4,336 fish. The number of spawn taken, 
4,530,000. Of this a large quantity was carried some miles 
above the Lawrence dam and there hatched. Taking tlie same 
period in the last three seasons, the fishery has been as follows : — 

1869. June 10 to July 19, . . 1,559 

1870. June 10 to July 19, . . 754 

1871. June 10 to July 19, . . 2,242 

It will be seen that there was an increase this year of three- 
fold as compared with the last season, and of one-third as 
compared with 1869. 

In the report for 1869 (page 18) it was said in regard to 
this fishery, " We must look for an increase in 1871 at the 
earliest and in 1873 at the latest." The increase has come at 
the appointed time ; and. what is more remarkable, the shad 
have come in large numbers directly up to the Lawrence dam, — 
a thing they have not done for many years. This movement 
was also foretold for the progeny of the shad put above the 
dam in 1867. They, however, differed from the alewives in 
regard to the fishway, which they seemed not eager to enter. 
This was a disappointment, but may be accounted for by the 
fact that the shad did not reach the Lawrence dam until the 
sixth of June, when the river was too low to tempt them up 
the fishway. Had they appeared earlier, or had there been the 
usual stage of water, there is good reason to believe that they 
would have passed freely over. A good deal has, after all, been 
acQpmplished in the enterprise. 

Although salmon have not been bred in New Hampshire to 
such an extent as to warrant a considerable return to the 
river, and although the exact fishway suitable to shad may 
not yet have been fully determined, it can, on the other hand, 
be claimed that wise laws and artificial breeding have increased 
the shad in both rivers, especially in the Connecticut, where 
the season of 1870 was the best for perhaps half a century ; 
and the past season has also been excellent, so that on the lower 
river, the price was very much reduced. On the upper river 
the exceptional scarcity of water kept the fish back, — an effect 
that always follows a dry season. On the Merrimack the shad 
have evidently increased, and have, at last, been brought in 



1872] SEXATE— No. 3. 13 

numbers to the foot of the dam at Lawrence. The fishway 
there has, after many experiments, been rendered an excellent 
one, with a flow of water so re<rular that all the smaller fishes, 
together with the alewives, pass up without trouble, and in 
great numbers. There seems no reason to doubt that proper 
alterations in the entrance will attract the shad, which have, 
indeed, already gone up, though in small numbers ; and which 
have also surmounted the Mystic fishway, this season, for the 
first time. 

Fishways have been constructed, during the past season open- 
ing up the Ipswich River as far as Topsfield, Indian Head River 
to Indian Head Fond, and the Neponset as far as Ponkapoag 
Pond. All the fishways constructed under the care of the Com- 
missioners have been visited and found to be successful. Wliere 
they have been built over dams on rivers and streams partially 
stocked with fish, long enough to warrant any results, a large 
increase has invariably followed. This has been very marked 
in the case of Mystic River and its tributaries. The people of 
Winchester and Medford took an early interest in restocking 
these waters. As the river is a short one, where experiments 
could be easily noted, more than usual attention was given to 
it. Notwithstanding the increasing impurities of the water 
have destroyed no inconsiderable number of the small fry, the 
alewives have increased almost beyond calculation, ascending 
the river in the spring by millions, and, in narrow places, often 
so plenty as to crowd each other out upon the banks The 
importance of a large number of these fish in the ponds that 
supply Cambridge, Charlestown, Chelsea and East Boston with 
water, should not be overlooked. The young fish derive their 
nourishment from feeding on the myriads of animalculae that 
otherwise would, in the months of July and August, perish, — 
and their decay render the water unhealthy. The city of Bos- 
ton acted wisely in procuring a law to prevent the destruction 
of fish in Cochituate Lake. 

In the summer of 1867 about five thousand young shad, from 
Holyoke, were turned into Whitney's Pond. A portion of these 
returned last spring, passing over the small fishway at Mystic 
dam. In 1868 and 1869 a large number of shad was hatched 
and turned in at Winchester. Tlie return of these fish may be 
expected in 1872, 1873 and 1^74. 



14 1NLA^D FISHERIES. [Jan. 

The Sebago salmon procured last year yielded several thou- 
sand eggs, which were successfully hatched. The seven fish 
brought at that time have lived perfectly well in a spring pond 
of moderate size; which shows how easily this large fish may 
be availed of for the purpose of culture. 

The prevalence of crime is nowhere more evident than in the 
depredations committed upon those who are interested in fish 
culture. Of the many persons engaged in this useful industry 
scarcely one has escaped. In some cases the entire stock of 
breeding fishes has been stolen. Of the many thefts committed, 
only one person has been convicted. In the case of the Com- 
monwealth V. Charles C. Smith of Waltham, it was shown in 
evidence that Mr. Charles Winn, a retired merchant residing 
in Belmont, had constructed a pond and stocked it with trout. 
The fish were stolen, and Smith was charged with the theft, 
convicted and fined twenty dollars and costs, — the full extent of 
the law. 

Fish cannot be housed or otherwise protected, and are, so far 
as exposure and liability to be stolen, the same as cloth on 
tenter-bars, or hides in process of tanning. A more stringent 
law is needed to protect those who have invested their time and 
money in this important enterprise. 

The Commissioners beg leave to suggest an appropriation of 
14,000 for the ensuing year. 

All of which is respectfully submitted. 

THEODORE LYxMAN, 
E. A. BRACKETT, 
THOS. TALBOT, 

Commissioners on Inland Fisheries. 



18T2 ] SENATE— No. 3. 15 



SUPPLEMENT 



[A.] 
COMMISSIONERS ON INLAND FISHERIES. 



MAINE. 

Charles G. Atkins, Augusta. 

NEW HAMPSHIRE. 

W. A. Sanborn, Weirs. 

W. W. Fletcher, Concord. 

T. E. Hatch, Keene. 

VERMONT. 

M. C. Edmands, "Weston. 

M. Goldsmith, Rutland. 

MASSACHUSETTS. 

Theodore Lyman, Brookline. 

E. A. Brackett, "Winchester. 

Thomas Talbot, North Billerica. 

CONNECTI CUT. 

W. M. Hudson, Hartford. 

Robert G. Pike, Middletown. 

James A. Bill, Lyme. 

RHODE ISLA ND. 

Newton Dexter, Providence. 

Alfred Reed Providence. 

Bardon, Scituate. 



16 INLAND FISHERIES. [Jan. 

NEW YORK. 

Horatio Seymour, 

George G. Cooper, 

Robert B. Roosevelt, New York. 

NEW J ERSEY . 

B. P. Howell, 

J. H. Slack, Bloomsbury. 

PENNSYLVANIA. 

James Worrall, Harrisburg. 

VIRGINIA. _ 

William B. Ball, Mid Lothian. 

Asa Wall, Winchester. 



1872.] SENATE— No. 3. 17 



[B.l 
ON THE rCSSIELE EXHAUSTION OF SEA FISHERIES, 

THIKJO IVOTICE. 



By THEODOKE LYMAN. 



At the session of the Legislature in 1870, there were presented 
petitions with over 3,000 names, praying for a law to restrict fishing 
with weirs, seines and gill-nets. The petitioners alleged that many 
valuable fishes, and notably the Scup {Pagrus argyrops)^ the Tau- 
tog {Tautoga onitis)^ the Striped Bass {Labrcix lineatus) and the 
Rock Bass {Centro2?ristes atrarius)^ had much decreased in conse- 
quence of the use of these engines. On the other side appeared re- 
monstrants, to the number of nearly 8,000 ; chiefly bank or mackerel 
fishermen, or those engaged with them in trade. After a very 
tedious and costly hearing, in which the weir men from only a por- 
tion of Cape Cod had to pay $3,000 for legal services, and the like, 
and in which the time of the Committee on Fisheries was occupied 
for several weeks, the question was brought up in the Senate, and 
after an able expof'ition by Hon. N. E. Atwood, the petitioners 
had leave to withdraw."* They withdrew, convinced against their 
will, and of the same opinion still ; and quite resolute to fight their 
battle over again when the field looked more favorable. There was, 
indeed, little to sway a looker-on towards either party. The wit- 
nesses generally had limited information, coupled with pretty strong 
prejudices ; and what real information was to be got was violently 
pulled and twisted by the half-dozen able lawyers engaged by the 
combatants. 

To avoid, in future, such waste of time, money and temper, has 
seemed to the Commissioners very desirable. The only way to 
avoid it was to substitute the exact observation of unprejudiced 
persons for the inconsequent souvenirs of interested witnesses. 
During the last session (1871) an opportunity occurred for making 
a start in this direction. Certain inhabitants of Cotuit, a town on 

* See Report for 1870, p. 60. 



18 INLAND FISHERIES. [Jan. 

the south side of Cape Cod, prayed the Legislature that a weir at 
the mouth of Waquoit Bay 'might be abolished. They alleged 
that this weir cut off the alewives (Alosa tyrannus) when seeking 
the fresh water of Marshpee River, and of other neighboring 
streams, in the spring. The hearing proved of the usual kind. 
None of the petitioners knew much about the weir, but they were 
sure it was bad, because they got fewer alewives and bass than they 
used to do, and no scup at all. On the other part, the remonstrants 
stated that their weir was quite a blessing in disguise, and that it 
captured only such alewives as did not breed in that neighborhood. 
In order to get some facts and to make a beginning of reliable sta- 
tistics, the Commissioners hired this weir, for the season of two 
months, and stationed a man there whose duty it was to keep a 
daily record of the fish taken, of the wind and weather, and of the 
temperature of the air and water. One of the Commissioners 
visited the weir, from time to time ; and important observations 
were there made by Prof Agassiz and Dr. Steindachner. 

Waquoit Bay (PI. II. fig. 1 ) is one of the most singular of the 
land-locked fiords on the south shore of Cape Cod — an irregular, 
many-lobed body of salt water, which is rendered in its upper part 
brackish by fresh streams, and which empties in the sea only 
through a single very narrow cut in the low sand barrier which 
shuts out the ocean. The influent brooks, dignified by the names of 
Quoshnet and Child's Rivers, are of the clear cold water peculiar to 
that sandy country, which everywhere pours out its springs near 
the surface. It is these spring brooks and these extensive shallows 
of salt or brackish water, protected from the ocean and teeming 
with small Crustacea, that render this region so renowned for its 
trout, which there get a size, fatness and. flavor rarely found any- 
where else. For similar reasons the alewives here flnd a proper 
breeding ground, by passing through the sheltered bay and ascend- 
ing the brooks to the ponds at their sources. The scup, too, and 
the striped bass, eminently estuary fishes, delight in the grateful 
cover and the abundant food. 

Here, in Massachusetts of the nineteenth century, there are not 
to be found many such primitive villages as Waquoit. It is a good 
twelve miles from the nearest railroad station. No telegraph poles 
disfigure with their ungainly length its quiet road. The daily mail, 
proceeding in a one-horse wagon, and going a roundabout course 
to avoid improper haste, arrives soberly at the little post-oftice. 
Every house is well painted and well scrubbed, suggesting the pre- 
cision and neatness of old whaling captains. These may be seen 
working in their fields and gardens, or going forth to catch blue- 



1872.] SENATE-No. 3. 19 

fish in sail boats, — a sturdy, simple race of men, quiet and brave, 
like all good seamen. Full of good advice, too. "Remember," 
said one of them, " when you are closing to lance a sperm-whale, 
and he turns and breathes in your face, don't fail to keep washing 
it with salt water ; there's nothing will give you sore lips so quick as 
the breath of a sperm whale ! " The landsman who listened to this 
wholesome counsel assured the ancient mariner, with unmistakable 
earnestness, that, when he did close with a sperm whale, he would 
look out about the breath. 

All the population is American of the English stock. If a man 
answers not to the name of Phinney, it is tolerably safe to call him 
Tobey. It seems there was an Irish girl in the village, but she 
found it so laborious to go all the way to Sandwich to mass, that 
she departed thence. The only people in the neighborhood not of 
Saxon blood are the descendants of the autochthonal red men, who 
now are much mixed with black, and who dwell in the Marshpee 
reservation. They live by farming, in a small way ; and some of 
them are skilful whalers, rising even to the dignity of " boat-steer- 
ers " in that calling. 

This seaside village it was, that, thirteen years ago, was disturbed 
by the erection of a weir on its borders. It came in for its share 
in the anti-weir movement of 1870, and the following testimony, 
against it and in its favor, was offered : — 

Timothy Hatch (a witness called on behalf of the petitioners). 

Reside in the east part of Falmouth, near Waquoit. Know something of 
the trap at Waquoit. It has been set generally about an eighth of a mile 
from the opening that leads into Waquoit harbor. 

A few seasons it has been very close to the opening. I should think that 
in the first place it led off 200 yards, and then they added on about 150 yards 
more. They begin in shore and put in a leader, and then put in what they 
call a bowl. In this case the other leader continues from the outside of the 
bowl and leads out still farther. I should not think it would vary more than 
a year or two from twelve years that tliey have been there. Have been to 
the weir a number of times when they have been taking fish out. Some- 
times they have had quite a large quantity of menhaden, and a variety of 
other kinds with them. I have seen two quite large boats, which I suppose 
would hold sixteen or twenty barrels apiece, that were loaded from the weir. 
These were principally menhaden. Have seen scup, tautog, herring and lots of 
other fish that were not of much consequence, of which, the principal part 
were dogfish and skates. Have also seen flounders, sculpins, shad, a cod or 
two, considerable many squid and some herring. Have not seen young 
fish — only some small dogfish. 

Do not know what the size of the weir is. Should think the mesh was an 
inch and a quarter square. They generally commence in March to set their 



20 INLAND FISHERIES. [Jan. 

weirs, or as soon as they can get good weather enough to put them down. 
I am not certain when it yields the most. They generally catch alewives 
first and then menhaden. I believe they stop generally about the first of 
June — about the time the blue-fish begin to come plenty. 

A few years ago it was pretty profitable. I do not know as to the amount 
that they received from it. 

From fifteen to thirty years ago I could go off at any time, especially just 
morning or sunset, and catch as many fish as I wanted, perhaps from fifteen 
to twenty-five or thirty in an hour. I noticed the scarcity of fish about twelve 
years ago. I ascribe the cause of this diminution to the weirs. Suppose 
seines in the bay have something to do with it 

Our herring have diminished in our river where we used to get our supply. 
We have considered the scup fishing in Waquoit Bay very important They 
pretend that it is for want of feed that the fish have left, and that it is on ac- 
count of the ooze which has come there, but I have taken the ooze out of the 
scup when I have been dressing them. They had eaten it. I can bring proof 
to show that the ooze has increased in proportion to the decrease of the scup. 
Nine years ago I could not more than get a wheelbarrow load on the shore, but 
this last year, in a distance of 125 or 130 yards, I have seen seventy-five horse 
loads come up at one flow. It has been intimated that the herring in a certain 
river in our locality have not decreased, and they have an affidavit from one 
of the owners of one of the ponds that they have caught as many during 
the last five years as they ever did. But one of the owners told me, six or 
eight y<-:ars ago, that they had taken pains to seed that pond more than usual. 
In the other rivers they have decreased, and they are caught later, or from 
about the 15th to the last of May. 

Abishai Phinney (a witness called on behalf of the remonstrants). 

Reside in Falmouth in Waquoit, and engaged in fishing of late years ; for- 
merly caught mackerel. The weir is situated at Waquoit. Have had it there 
twelve years. We set about the 1st of April and take it up the 1st of June. We 
catch for bait, altogether, for Gloucester fishermen and the mackerel fishers. 
We stock about $2,000 a year on the average. Take principally alewives 
and menhaden. Take a few mackerel, and some tautog and some bass. 

For the last seven or eight years I think we might take from 2,500 to 3,000 
pounds of tautog during the whole season. The last three years we have not 
taken a great many of them. All we got of tautog we gave away. Do not 
ship them at all. It will not pay to ship them Take a few scup. Last year 
we caught perhaps two or three barrels About eight years ago we caught about 
200 barrels. Take no young fish unless there may be in the haul some small 
herring ; sometimes shad. The most we get are large fish, and especially ale- 
wives. No spawn destroyed by our weir, nor any eatable fish Suppose the 
people of Falmouth are the most interested of any in the herring (alewife) 
fishery. We have always been of the opinion that they (alewives) are of a 
different kind from those that come into our creek. We calculate they are fish 
making their passages. Have seen similar ones on the coast of Maine. There 
is a small portion of them that get into our weirs. There are several brooks 



1872.] SENATE— No. 3. 21 

at the head of our bay that herring go into ; and for the last eight years one 
river there has had more herring caught from it than has been caught in it for 
twenty years before. One reason I suppose is, that they have taken some 
care of it. 

One gentleman told me that he believed that if we had another weir they 
should catch more. All of our rivers for the last year have had abundance 
of herring ; great many more than enough for the fishermen of the town. 

Last year, for the first time, there was a weir put one-quarter of a mile to the 
west of the mouth of one of the most profitable rivers, and everybody supposed 
that it would hurt the river,* and I thought perhaps it would myself, from 
what 1 had seen of the rivers and fisheries ; but when the time came, 
although they caught a considerable number of alewives in the vsreir, yet 
the herring ran up the brook as usual, and there never have been so many 
herrinor caught in that brook before as there were last year. There were 
more last year than the three previous years altogether. There is any 
amount of testimony to that fact. A man by the name of Powers was at the 
head of it. They took mostly alewives. 

We have a permit from the selectmen for five years. The second year we 
did not get a permit, but set it without a permit, and afterwards they gave us 
a permit and taxed us. 

There have been a great many herring in Marshpee. They catch a great 
many and sell a great many. One year, I know, they had twenty-five or 
thirty barrels over and no sale for them. 

They generally come late into Marshpee Brook. Any quantity of menha- 
den come down through the Sound in schools. 

We can fish for menhaden quite early. I think I have seen some spawn in 
these, but when we come to the school-pogie there is none in them. 

Never saw the spawn of blue-fish, although I have seen a good many young 
fish. The great body of them never deposit their spawn on our shores. 

Of striped bass we take perhaps some 200 or 300 a year. 

Used to get a great many scup in Waquoit Bay, but there has been a 
change in the harbor and this green ooze is there, and the fishermen attribute 
to that, the cause of there not being any more fish there. There are tautog 
in Vineyard Sound. We take more now than when we first set. Do not 
know anything about any mussels being washed ashore. The Gloucester 
mackerel fishermen could not get their bait otherwise than from our weirs in 
the spring of the year. It cannot be taken in purse-seines. The current is 
an obstacle, and then there is a great deal of rough bottom, and eel-grass at 
the bottom. The purse-seine cannot be used in Vineyard Sound. The fish 
have not schooled at the time they first want the bait. There are large quan- 
tities of blue -fish in our bay. Have seen acres of them. The ooze has been 
coming into the bay for the last ten years. Never saw any spawn in the bass 
in May or June. Have taken scup out of the body of the blue-fish. 

Do not think setting the traps affects our hook fishing. Think the alewives 
and herring come around the river and they find an obstruction and fall back. 
The faster the fish run the faster they get into our weir, and we catch them 

* Stream leading to Coonemesset Poud. 



22 INLAND FISHERIES. [Jan. 

better on the passage. The men that have this weir are men that have 
tended these rivers (alewive streams). Do not think there is any difference 
in the amount of herring in the rivers. In ten years we have caught two 
sea-trout and one Spanish mackerel. 

My personal observation has been mostly on the trout and halibut. These 
are fishes, the scarcity of which has never been attributed to the weirs, and 
the trout now are very scarce with us indeed. 

The fish which the blue-fish feed on are those which are most plenty, — the 
menhaden and alewives. Do not think we disturb the spawn of any eatable 
variety of fish. 

" A jDOund or weir is an old and singular contrivance, whose suc- 
cess depends upon the fatal principle of fishes never to turn a sharp 
corner. A place is chosen where it is known that large schools are 
accustomed to coast along parallel with the shore, and there a bar- 
rier is run out in a straight line. This barrier is called the 'leader,' 
and may be a stone- wall, a fence of laths or of brush, or a net 
stretched on poles. At the end of this leader, and like a spear-head 
on its handle, is constructed a heart-shaped inclosure or ' pound ' (or 
'heart') having a narrow opening, on either side, next the point of 
the leader. On its off-shore end this heart again opens into a cir- 
cular enclosure called the ' bowl.' A school coasting along shore is 
suddenly stopped by the leader, and immediately the fish turn to- 
ward deep water, and swimming parallel with the barrier, j^ass into 
the heart, whence there is no escape save by a sharp backward turn, 
which, as before stated, is against their principle. Therefore they 
swim round and round and pass into the bowl, where they are left 
by the tide, or, if the bowl be in deep water, they are hauled up by 
a net bottom."* (See PI. 2, fig. 6.) 

• Weirs of some kind are spoken of by the first whites as in use 
among the Indians, and similar engines have been used in Europe 
from a remote period in history. The madrague, employed on the 
coasts of Spain for the capture of the tunny or horse-mackerel, is 
only a floating weir with a complex arrangement of hearts and 
bowls. It was brought to Spain by the Phoenicians, and continued 
there, and at various points along the Mediterranean coast, until 
the great incursions of the barbarians and the flill of Pome, when 
apparently all but the simplest fisheries were destroyed. The 
Moors, however, revived the great weirs under the name of almor 
drahas^ whence is derived the present word madragues. In the 
third chapter of Don Quixote, the blackguard innkeeper mentions, 
among the disreputable places he has visited, "playa de Sanlucar." 
This " beach of Sanlucar " was the location of some of the great 

* Report for 1867, p. 11. 



1872.] SENATE— No. 8. 23 

timny madragiies, whither came a mob of idlers and thieves to 
share in the excitement and profit of the annual fishery. At this 
season it was the custom of the proprietor, the Duke of Medina- 
Sidonia, to mingle familiarly with the crowd ; and hence the obscure 
Spanish proverb, " Por atun y ver al Duqiie^^'' " For horse-mackerel 
and to see the Duke," which is equivalent to the English "kill two 
birds with one stone." 

Weirs in this country are, as already stated, made in two ways. 
Those on the inside of Cape Cod are generally tidal weirs, con- 
structed with entwined brush ; while those along the south shore 
are made with netting, and the same is true of Narraganset Bay, 
where they are called heart-seines, and on the coast west of the 
Connecticut River, where they get the name of pounds. 

The Waquoit weir is made like many of the same sort. About 
the middle of March, if the weather permits, the men begin to set 
the poles which are to support the " lint," as the netting is called. 
First a row of stout poles, or rather posts, running straight out, is 
firmly set by a floating pile-driver. The poles stand 15 feet apart, 
and run (Jirectly seaward for 750 feet, to make the first " leader " 
(PL II., fig. 6, g.), which here stops short at the mouth of the " heart" 
(fig. 6, h.), whose outline is marked out by the same kind of poles 
set nearer together, to wit, about 10 feet apart. The entrance to 
the heart is 25 feet wide on each side of the leader, or 50 wide in 
the whole ; but it converges strongly towards its outer apex, so that 
the entrance to the " bowl " is only seven feet wide. This bowl 
(fig. 6, i.) is marked out, like the heart, with poles set somewhat 
close together. Moreover, from its east side projects a sort of lobe 
18 feet wide and 36 long (fig. 6, k.), indicated by the five poles 
which are to support this "pocket" wherein fish maybe kept alive. 
From the outer point of the bowl another row of leader poles is 
driven, running seaward 450 feet ; and, at its extremity, posts are 
driven for the second heart, bowl and pocket, like the first. Then 
the lint is carried out in boats and hung on the leader posts. It is 
composed of a pretty strong net, with a mesh of two and a half to 
three inches. Along its foot, where are placed the leads of a seine, 
there is made fast a chain ; while along its upper edge rims an inch 
rope (i. e. an inch in circumference). As the net is passed on 
alternate sides of the succeeding poles, a round turn is taken with 
the rope, to hold it in place, while the chain, sinking to the bottom, 
maintains the lint in an upright position and closes the spaces be- 
tween the poles (PI. II. fig. 4). The heart is hung with lint in the 
same way ; but the bowl must be differently treated, for the bowl- 
net has a bottom as well as sides. It is in fact a great bag, 40 feet 



24 INLAND FISHERIES. [Jan. 

long, 80 wide and 15 or 20 deep, and is hung in an oval of poles, 50 
feet long and 100 wide. For this purpose a one and a quarter inch 
rope runs, like a binding, entirely around the upper edge of the 
bowl-net (fig. 5), and opposite each pole there is made fast to this 
rope a head-line (fig. 5, a.) whose other end is attached to the pole. 
These head-lines suspend the bowl-net, which cannot, however, be 
held down by chains or weights, because these would make it too 
heavy to handle when the weir is " hauled." Therefore there are 
bottom-lines (fig. 5, b.) corresponding to the head-lines, except that 
they are attached to the lower edge of the bowl-net, whence they 
pass through a hole in the pole, are brought to the surface of the 
water, and are there made fast. When, now, the head-lines and 
bottom-lines are hauled taut and made fast, the bowl-net must be 
firmly set in position, namely, projecting about five feet above the 
water, and extending thence nearly or quite to the bottom. It 
remains only to show how the fish are admitted to the bowl and 
how the fatal door is clgsed on them. On either side of the en- 
trance to the bowl stands a post (fig. 3, c), and, beside it, a long 
slender pole (fig. 3, d.) attached by rings (fig. 3, f. e.) to the ])Ost, 
but free to run up and down. The lower end of the pole is tied to 
the lower part of the bowl-net, and by pushing the pole down till 
it touches bottom, the net is held firmly down ; and a gap being 
left in the side of the net at this point, a free entrance is made for 
the fish. This entrance is closed by pulling up the sliding poles till 
they bring the net to the surface of the water. 

The weir is " hauled" once a day, and always at slack water, be- 
cause with a strong tide, running east or west, it is impossible to 
handle the bottom-lines. The men pull out in two parties ; of 
which one, in a large scow, passes round the outside of the bowl, 
casting oflT the bottom-lines ; while the other, in a yawl-boat, pushes 
inside the bowl, pulls up the sliding poles and closes the entrance. 
The slackening of the bottom-lines allows the bowl-net to hang 
free ; and the crew inside begin to haul up the bottom of this net 
in such a way as to work the fish towards one corner, letting the 
net, as it comes to the surface, pass under their boat, which is thus 
slowly drawn across the bowl towards the corner where the capture 
is to take place ; and where the scow is already waiting outside. 

The scene now becomes an exciting one. The menhaden in 
thousands begin to show the sharp upper lobes of their tails abo,ve 
the water; here and there darts a feverish mackerel, like a blue 
and silver flash ; great leathery skates, looking like pigs rolled out 
flat, raise their snouts in slow astonishment ; here a shark sullenly 
works his way through the crowding mob; hundreds of goggle- 



1872.] SENATE— No. 3. 25 

eyed squid, smothered in the press, feebly ply their force-pumps ; 
and there the murderous blue-fish, undismayed by imminent death, 
glares fiercely and snaps his savage jaw to the last. All these, with 
flat-fish, sea.-robins, butter-fish, and many more, are shaken and 
rolled in a fluttering mass iridescent with changing colors, and 
shower their silver scales high in air. It moves even the weir men 
in their oil-skin clothes, with a slight excitement, as they cull 
out from the menhaden the choice and the ofllal fishes. There is 
Uncle Abishai smiting sharks with a spear, like so many Sauls, 
and he smiteth them not twice ; and Captain Ed'ard endeavoring 
with a swift scoop-net to capture a dodging shad, because Mrs. Asa 
has boarders and needs a fish for dinner ; and Captain Charles, with 
the air of one who gets a toy for a good child, diligently striving 
after " one of them 'ere striped robins that the Professor wanted." 
All this is strange and entertaining even to a Commissioner, who by 
the motion of a long swell and the evil piscatory odor, is somewhat 
afflicted with what the local satire terms " white-ears." And now 
the menhaden, bushels on bushels, are scooped all quivering into 
the great scow ; for, a little outside, lies a mackereler, who has just 
let go her anchor with a rattle, and a boat is pulling in with the 
skipper, to buy bait. "What yer got?" cries he, in an indifferent 
tone. "Menhaden," retorts Captain Warren, as if speaking of a 
new and scarce fish. (A pause.) " I don't know but I miglit take 
a few berrels, if they was low," says the skipper. fiVb reply) 
" What do you want for 'em ? " " Eighty-five cents," shouts Cap- 
tain Warren, and then (sotto voce), "I don't believe he's got a 
scale ! " At this answer, the man of mackerel pushes over the 
tiller and sheers off indignantly ; but presently pauses ; " Give you 
sixty-five for seventy berrel." " Seventy-five cents is the lowest," 
replies Captain Warren. " Call it seventy cents for seventy-five 
berrel." " Waal ! Waal ! " And, by this time, the scow is full, 
and the weir men pull for the vessel, whose numerous crew is ready 
to hoist the bait on board and salt it down. They stand with 
knives, barrels and chopping-blocks, and rapidly cut off the heads 
and tails of the fish and the thin part of the sides, then give a gash 
in the shoulder, and throw them into the barrel for salting. A 
mackereler will take as many as 120 barrels of such bait, which is 
minced fine in a hand-mill and thrown over to toll the fish. 

Many years ago, when mackerel were cheap, the younger ones, 
called "No. 3's," were laboriously chopped up with a hatchet and 
thrown over as " chum." AVhen mackerel became dear, especially 
during the war, the No. 3's were too valuable to be thrown away, 
and cheaper material, such as menhaden, was resorted to. 
4 



26 INLAND FISHERIES. [Jan. 

This vital matter of bait lies at the bottom of the weir question. 
The weirs furnish it in great quantities and early in the season ; 
and they are especially important to the cod fishermen. The cod 
fishery may be divided into three kinds : 1. The local fishery, 
which is pursued near the shore to supply the daily market. 2. 
The Grand Bank and Gulf of St. Lawrence fishery. 3. The 
George's Bank fishery. The last two are of the greatest impor- 
tance. 

For example, the Gulf and Bank fishery of Provincetown alone, 
for the year 1868, was as follows : — 



Vessels (81 Grand Bank; 10 Gulf of St. Lawrence), 

Men, 

Bushels of salt carried, 

Barrels of clam-bait carried, 

Quintals of cod brought back (112 lbs. each), . 
Quintals of halibut brought back (100 lbs. each). 
Barrels of oil brought back (of 31^ gals.), 

Ships cast away, 

Men lost, 



91 

988 

83,220 

4,098 

78,607 

15,056 

1,609 

2 

8 



Gloucester sends a much larger fleet, including many vessels to 
George's Bank, a fishery which is peculiar, because fresh bait is car- 
ried thither, while on the Grand Bank salted clams are used, and in 
the Gulf of Saint Lawrence fresh herrings or other small fishes are 
always to be had. The same was true of the Labrador fishery, 
where they used to seine the capelin {Malotiis) and the sand-eel 
{Ammodytes). George's Bank is about eighty miles, by the course, 
east of Cape Cod, and is much frequented for the winter and spring 
fishing. In February frozen herrings from Newfoundland furnish 
bait for this fishery ; as spring draws on, alewives are procured ; and 
later, menhaden are carried. Forty years ago these pains were not 
needed, because plenty of herrings could be netted on the Bank 
itself. These herrings were first taken on the surface of the water; 
in after years they could only be got by sinking a gill-net ten or 
fifteen fathoms, and at last they disappeared wholly. Now it is 
plain that this George's fishery requires fresh bait early in the 
season, which is supplied by the weirs ; at first alewives, from the 
last of March to the last of April ; then menhaden, from the last of 
April to the first of June. With our present knowledge of the 
habits of fishes, and our methods of capture, it is not clear how 
fresh bait could be got, for the George's men and the early mack- 
erelers, without the use of weirs. In the spring, alewives cannot 



1872.] SENATE— No. 3. 27 

usually be seined till they get close to the mouth of their brooks ; 
and menhaden do not " school up," that is, cro^yd close together at 
or near the surface, until the beginning of summer. As a fact, the 
purse-seiners do begin so soon as the season allows them ; and it 
was in evidence at the hearing of 1870 that there are fifty purse- 
seiners in the short distance between Gloucester and Cape Ann. 
Indeed, it takes many hands, working in many ways, to catch bait 
enough for our fishing fleet, which may easily be understood when 
it is remembered that each George's man takes fifteen or twenty 
baiTcls for a trip, and makes two or three trips ; and that each 
mackereler lays in from seventy-five to one hundred and twenty 
barrels, or even more than that. 

The object and advantage of weirs in procuring bait and market- 
able fish have now been set forth, and it remains to examine the 
charge of undue destruction which has been preferred against them. 
By combining the testimony of our legislative hearings and that of 
the Rhode Island inquiry* with the observations made at the 
Waquoit weir and those conducted by the United States Commis- 
sioner,! a good foundation may be laid for future investigation, and 
it may even be possible to state some facts as highly probable. But 
let it be said, once for all, that this investigation must go on like 
any other in science. The day is (or ought to be) long past when 
people will listen to a priori argumentation and attend to the nice 
weighing of probabilities and guesses. The question of the exhaus- 
tion of sea-fisheries is one to be settled only by close and protracted 
observation, and by collecting and comparing historical matter and 
oral testimony. Let our seaboard States see to it, then, that these 
observations be made regularly and for many years to come. Seth 
Green, in his homely way, said a wise thing : " What we know we 
get by hard knocks ; and what we do)Vt know would fill a big 
bookf" 

In examining the problem, we must pass from the known towards 
the unknown. It is, for example, well known that certain fishes in 
certain places may be exterminated : trout in brooks by over-fish- 
ing; salmon in rivers by dams near their mouths ; smelts in creeks 
by poisonous drainage. Again, it is known that certain fisheries, 
though diUgently pursued for centuries, do not exterminate the fish ; 

* Report of the Joint Special Committee on the Fisheries of Xarraganset Bay, ISrO. 

tProf. S. F. Baird, with good assistants, and with the aid of several scientific men, has 
busily investigated the fisheries of Vineyard Sound and neighboring waters, during the 
summer and early autumn. He has brought together a great mass of information and au 
excellent collection of fishes. The results of this labor will soon be published; and, mean- 
time, the Massachusetts Commissioners are indebted to him for hearty cooperation and 
for generous assistance. 



28 INLAND FISHERIES, [Jan. 

sucli are the tunny fishery in the Mediterranean, and those of the 
cod, mackerel and herring in nortliern waters. And now, here is 
the question : Between a destructive and a not destructive fishery, 
where is the dividing line ? What are to be classed one way, and 
what the other way ? In answer, one is generally treated to a mass 
of vague generalization. " Fishes are eaten and destroyed in the 
sea by hundreds of millions, and therefore the tens of thousands 
taken in fishing cannot affect the total." " Fishes full of spawn are 
taken at that place by the hundred barrels, and we went fishing 
near there and could not get a bite, therefore they are diminish- 
ing." " Fishes lay millions of eggs, and, if not killed off, the sea 
would become solid with them ; therefore they are not diminishing." 
" We have known fishes to go away of themselves ; and this sort of 
fish, which is no longer found, must therefore have gone away of 
itself." And so on with endless petitio pri7icipii, and " undistributed 
middle," and every other logical fallacy laid down in Whately ! 
But the cold query ever comes back : What is hiown about it ? 

The accompanying tables will show what is known, thus far, 
about one weir, and that not one of the most important; but of in- 
terest, because it was charged with injuring a fresh-water fishery. 

Table I. shows that the total catch of fish too large to pass a 2^- 
inch mesh, for the season of about sixty days, was 333,855 ; or, say, 
5,564 fish a day on the average, along a net wall of 1,375 feet ; or, 
looking on this band along the shore as a sea-highway 1,375 feet 
wide, then 5,564 passers-by were daily captured. This number 
does not represent all the marine travellers within that limit, be- 
cause many fishes doubtless " strike back " and refuse to " lead " ; 
that is to say, instead of following close along the leader and pass- 
ing into the bowl, they retreat from the net, and, with a sweep, 
double the whole weir. It also is known that fish, when left many 
hours in the bowl, often effect their escape. Weir men say of fish 
that they "lead" best when passing rapidly towards some distant 
point; and worst when they are moving slowly or uncertainly. 
Hence they maintain that the ale wives taken are chiefly those 
which are bound for points farther to the northward and eastward ; 
whereas, the schools which enter the streams near a weir proceed 
with deliberation, and are not led into the trap. Now Table IV. 
shows that in 1871, of all alewives taken by the weir, |f were 
taken before April 21 ; in 1870, f ; in 1859, if ; in 1868, f ; in 1867, 
If ; in 1866, j% ; in 1865, y\. Therefore, in six out of seven years, 
nearly all the alewives are taken before the last third of April. 
But the greatest run of alewives tq) the streams usually takes place 
about the twentieth of May, a full month after the chief ale wife 



1872.J SENATE— No. 3. 29 

fishery is done at the weir. It is a common saying, " the sea-trout 
run up about the twentieth of May, with the herring." For exam- 
ple : during the past season (1871) there were taken at the Waquoit 
weir, 50,153 alewives, only 60 of which were captured after April 
21. In the little brook leading from John's Pond to Child's River 
and the head of Waquoit Bay (PI. II., fig. 1), there were netted 
100,000, the great run being May 22, and 50,000 (by estimate) were 
allowed to run into the pond. Besides which, about 25,000 were 
taken at the Bourne's Pond fishery, and perhaps as many more in 
other parts of the bay. If, now, the weir stops a large part of the 
alewives which seek to enter Waquoit Bay, how comes it (1.) that 
into a single brook, tributary of the bay, there entered three times 
as many alewives as were taken at the weir ; and (2.) that, at the 
season when alewives are captured at the weir, few or none are 
netted in the brook; and vice versa? Answer may be made, (1.) 
that the alewives which entered the brook, passed into the bay 
early in March before the weir was set ; (2.) that, once in the bay, 
they loitered there two months until the temperature and the swell- 
ing spawn impelled them to seek fresh water. This latter answer 
is more or less reasonable ; because alewives, when first they enter 
bays, or salt estuaries, do loiter, and drift back and forth with the 
tide. Their movements, like those of the sea-trout, seem influenced 
by the heat of the salt water. Table I. shows that this was 49"^ to 
51° the last third of April ; a month later it rose to 58°, then to 60° 
and then to 62° ; and at this moment (May 22) the chief " run " of 
sea-trout and alewives took place. The fresh water then encoun- 
tered by them would vary in temperature ; if it were that of a pure 
spring brook, it would be perhaps 5° below the temperature of the 
salt water ; if it were the drainage of a pond, its temperature 
might be 10° higher. On the whole, these fishes probably "run up" 
in the largest numbers when the salt and fresh water are at 58° to 
60°. There is, however, nothing to indicate that large schools of 
alewives passed from the ocean into Waquoit Bay early in March, 
and before the weir was set ; on the contrary, the tables for the last 
seven years show that from March 17 to 31 the catch is always poor 
and straggling. At any rate, there is nothing to suggest that 
200,000 fish passed into the bay before March 24, when the weir 
took only 50,000 after that date. One thing is certain : If the past 
season was a fair sample, and the weir should always be set in the 
same way, it would not prevent the proprietors of alewife streams 
in Waquoit Bay from gathering a good harvest. What remains to 
be proved by future observation is, whether the season 1871 was a 
fair sample as to the movements of the alewives. 



80 



INLAND FISHERIES. 



[Jan. 



The above views are strengthened by the fact that whereas the 
weh* took only 86 striped bass altogether, a single fisherman with 
hand line took 75 in a single day, during June, at Poket Point 
within the bay ; and it is estimated that 200 were thus caught in 
course of the season. 

Here it is of interest to glance at the conditions which are neces- 
sary to the culture of alewives, and to examine the agencies of 
destruction at work against them ; for this useful fish is taken in 
quantities which render it important. Most people would be sur- 
prised when told that some small streams thus produce, annually, 
100 tons of animal food, which is sold at one fiftieth of the price of 
common beef. 

Here is the annual product of two streams emptying into the 
head of Buzzard's Bay, the one for fifteen, the other for seven 
years, to which are added for comparison the Waquoit returns 
from Table IV. :— 



Year. 


Barnstable County. 


Waquoit. 


1857, 


566,400 


_ 




1858, 












516,800 


- 


- 


1859, 












480,000 


- 


_ 


1860, 












568,000 


- 


_ 


1861, 












540,000 


- 


- 


1862, 












474,400 


- 


_ 


1863, 












562,800 


_ 


_ 


1864, 












804,000 


- 


- 


1865, 












840,000 


457,600 


408,660 


1866, 












632,050 


572,800 


71,249 


1867, 












496,000 


367,200 


58,814 


1868, 












380,000 


313,600 


35,577 


1869, 












420,000 


276,800 


34,504 


1870, 












320,800 


258,000 


75,472 


1871 (about), 








481,000 


315,200 


50,153 


Total, . 


8,082,200 


2,561,200 


734,429 


A 


verag 


^e, 








538,813 


365,885 


104,918 



The first thing that strikes the observer is the great variation of 
a weir as compared with a stream. Waquoit produces one year 
400,000, another 70,000, and another only 34,000 ; while the streams 
show a product more steady than that of land crops. One exhibits 
the extremes of 840,000, 630,000 and 320,000 ; the other, 572,000, 
367,000 and 258,000. The second point is the small yield of this 
weir, which did not produce so much in seven years as the better 
stream did in the single season of 1865 ; nor did it produce, during 



1872.] SENATE— No. 8. 81 

the past season, one-half as much as Child's River alone, which 
empties into the very bay whose entrance it was said to bar. Cora- 
paring the two streams together, there would be the following 
series of years from best to worst : — 

1865, 1866, 1867, 1871, 1869, 1868, 1870. 

1866, 1865, 1867, 1871, 1868, 1869, 1870. 

This near correspondence goes to show that the causes of increase 
or diminution lie chiefly in the sea ; because the conditions inland 
would hardly be likely to agree from year to year ; such as the care 
of the fish, the state of the fishways, the greater or less use of water 
at the dams by the mill-owners, &c., &c. 

All such causes affect the seeding of the alewives. If, for exam- 
ple, the flowage made by a dam is suddenly reduced by a heavy 
draught of water over the wheels, the eggs, which are laid round 
the edges and in shoal water, may be left dry ; and so may the 
newly-hatched young, which, as they grow, encounter fresh perils. 
Vast numbers become the prey of pickerel ; some are crushed in 
turbine wheels, and some are caught in dip-nets for bait or to feed 
ducks withal. Nevertheless, were the dangers of fresh water the 
sum of their troubles, a few pairs of alewives would doubtless be 
enough to keep a stream well stocked. It is, apparently, in the sea, 
where they remain during late autumn and winter, that the great 
destruction takes place. To determine this destruction, a compari- 
son has been made of three alewife streams, in different places, and 
seeded in different ways. The following is the result : — 

Stream JVo. 1. About 17,500 alewives are annually thrown over 
the dam from the water at its foot. These breed in the ponds 
above, and their young return to the sea by the mill-sluices. If 
one-third are females, there would be 5,833. If each lays 250,000 
eggs,* there would be 1,458,000,000. Now the annual catch of the 
river is 208,000 ; and, if it is assumed that f of the fish that enter the 
river get taken (the dam being a complete barrier to them), then 
the entire number entering the river each year would be about 
250,000. This sum divided by the number of fish put over the 
dam, to wit 17,500, gives a rtiurn or crop of 14 : 1. Or, if the 
whole annual lay of eggs (1,458,000,000) be divided by the annual 
return of marketable fish (250,000), it will be seen that only 1 in 
5,832 of the eggs returns as a grown fish. 

Stream No. 2. About 1,250 alewives are annually carried in a 
tank and deposited in breeding-ponds some distance above the point 
of capture. The young have to find their way back through mill- 

* Report for 1868, p. 8. 



32 INLAND FISHERIES. [Jan. 

wheels and difficult sluices. Applying the same process of calcula- 
tion, and there would be 417 females laying 104,000,000 eggs. Of 
the returning adult fish, nearly all, or say -^q, are taken. The 
annual catch is 40,000, and the annual total return or crop would 
then be 44,000, which, compared to the 1,250 seeders, would be 
35 : 1 ; and the eggs laid, being divided by 44,000, show that 1 in 
2,363 becomes a grown fish. 

Streo.m N'o. 3 is a "natural" one, that is, the fish are allowed to 
run over the dam, four days in the week, by a fishway. The aver- 
age annual catch, fishing three days in the week, is 538,813, which 
should represent ^ of the fish coming in the stream. The other 
t, or 718,416, are assumed to run into the ponds above the dam. 
Proceeding with the fomier calculation, there would be 239,472 
females, and these would lay 59,868,000,000 eggs. The total num- 
ber of fish coming each year into the stream is calculable as 1,257,- 
229, which, compared with the seed fish, is a return of only If : 1 ; 
and would indicate that only 1 in 47,500 of the eggs grow to ma- 
turity. 

If an average be made of the three streams, the result is as fol- 
lows : — 

Each seed fish (males and females together) sends back 17 grown 
fish; 1 Q^g in every 18,565 becomes a grown fish. 

In the report for 1867 (p. 15), it was calculated, from wholly dif- 
ferent data, that, among shad, 1 in 20,000 of the eggs returned as a 
marketable fish. 

Such calculations must, in the nature of things, be very crude ; 
and yet they show that, whatever points are taken as premises, the 
conclusion is always similar in character, and is, in brief, this : The 
reproductive function among animals has two ends : 1. The pa-pet- 
uation of the species ; 2. The supplying of organized material as 
food. This law is especially illustrated among the fishes, of which 
the greater part are carnivorous, and indiscriminately devour their 
own young or that of other species. The ocean is a vast, teeming 
workshop, crowded with fabrics torn in pieces ere they are half 
finished, to be converted into other fabrics, which in turn are as 
rapidly destroyed. The myriad forms of life scarcely take on their 
embryonic state before they are crushed, and j^ass, with a power 
that never dies and never sleeps, into new organisms, which are 
themselves struck down in the unceasing slaughter. It is a specta- 
cle before which the mind quails ! 

One thing must be remembered in studying this balance of nature, 
this equilibrium of reproduction and destruction ; and it is, that a 
very small thing may. disturb it, or may 7iot. The destruction by 



1872.] SENATE— No. 3. 83 

man may avail, or may not avail, to spoil the equilibrium. It does 
so avail with salmon in rivers ; it does not avail with cod in the 
open sea. And, in each case, nothing can determine but patient 
investigation. Suppose, for example, that of the eggs laid in the 
pond of stream No. 3, 1 in 100 hatched and passed down as young 
fry to the sea ; that would make 598,680,000 of minnows swimming 
seaward from that one stream. And might not that six hundred 
millions attract larger fish to the neighborhood ? And if all the ale- 
wife streams were stopped (as many have been), would there not be, 
perhaps, a decrease in the number of large fish to be found in-shore ? 
The rule holds good for all animals — where their meat is, there will 
they be. 

Turn now the inquiry from river fishes to those that inhabit salt 
water only ; and take a representative. The scup belongs to Rim- 
baud's division of " white fishes " (Poisson blanc), that is to say, 
those which retreat in cold weather to the off-shore depths and 
return with the warm weather to the shallow water close to the 
coast. Of this group no representative has been more abundant on 
the south shore of Cape Cod than the scup. Early in May, they 
used to make their entry into all the bays and fiords in great mul- 
titudes. Their route is not so well made out as it should be, but, 
according to the best observations, they make their advance through 
the gap, about fifty miles wide, between Montauk Point on the 
west, and Gay Head on the east. Where they come from is a 
more difiicult question; for the species is plenty as far south as 
Georgia ; * and nobody can say how far south the Yineyard Sound 
scup retire during the winter. It has been guessed that they go 
to the edge of the Gulf Stream ; and this is as good as any other 
good guess. The same remarks apply to our shad, which come 
round Montauk Point, and thence, according to the fishermen's 
belief,t oblique westward to enter Connecticut River. It is the 
received opinion that the scup, as they near the shore, "fan out" to 
the northward and eastward, filling Narraganset and Buzzard's 
Bays, and Yineyard Sound. J. N. Luce, a very intelligent observer, 
testified at the legislative hearing of 1870, that scup appeared 
first at the icest end of the Yineyard, and coasted its northern 
shore, passing into the tidal ponds in succession, beginning with 
Menemsha Bight (see Plate I.) and continuing eastward. The big 
fish, some weighing two pounds, were in-shore, and the smaller 
ones out in deeper water. They appeared first at Gay Head between 



* Holbrook, p. 175, PI. XXV., fig. 1. 
t Report for 1867, pp. 8, 12, 49. 



5 



84 INLAND FISHERIES. [Jan. 

April 25tli and May 10th, and then were full of spawn, but, by the 
end of June, all the females were shotten ; and in August, the tidal 
ponds were crowded with the young. The first frost was a signal 
for old and young to leave these ponds; the latter in such vast 
numbers that whole windrows of them were sometimes thrown back 
on shore by the surf. Of these big scup in the salt ponds he had 
seen none since 1865, and he noted a diminution, beginning at the 
east end of the island, as soon as pounds were set in the neighbor- 
hood, whence he argued that in their passage eastward they got 
completely cut off before reaching the extremity. 

The scup arrive near Newport from the 10th to the 12th of May ; 
at this season they push their way slowly, sometimes making no more 
than four miles in a day. They then are said to be " numb," and 
are thought to be blind. The origin of these absurd notions is the 
fact that they are full of spawn and are feeling their way cautiously, 
like most fishes in like circumstances ; moreover, the temperature of 
the water variously affects their movements. TThen a cold north- 
easter blows, they hold more in deep water, to the gi'eat loss of the 
trappers. Their mode of entering Nan-aganset Bay was a subject 
of dispute. Some of the Saugkonnet trappers — whose interest it 
was to show that they took the scup coming out of the bay — main- 
tained that the fish entered by the west passage, past Point Judith, 
passed round the north end or across the south end, and coming 
down the east passage, fell into the traps,* whose mouths were 
always set to the north. The hook-and-line men, however, averred 
that the scup pushed up both passages at once, and in the middle 
also, and those that were taken at Saugkonnet were hugging the 
shore and got set into the traps by the tide. Both views may be cor- 
rect ; but the second one doubtless is, because the singular inroad of 
young scup, which took place this year and which will presently be 
spoken of, struck first at Saugkonnet and afterwards at Beavertail. 
It is usually thought that no scup came in through Muskeget Chan- 
nel, but this, like the rest of the theory, is not well proved. The first 
specimen was taken at Waquoit, this season, as early as April 25th, 
and the greatest numbers taken were on May 10th and 13th. The 
season was peculiarly early, and the first " run " near Newport was 
on May 3d, which would be a week's difference between these 



* A trap is a simplified weir (PI. II., fig. 2), The bowl is merely an oblong, rectangular 
pen, of large size; and the fish would immediately escape, did not the fishermen, as soon 
as a school had entered, pull up the net bottom (a.) and shut them in A trap therefore 
requires constantly to be watched. This modification of the Madrague is said to be the 
invention of Benjamin Tallman. 



1872.] SENATE~No. 3. 35 

points, not enough, perhaps, for the slow scup to move so far. The 
dates for appearance for past years (table) suggest that the fish of 
that part of the coast must. strike in through Miiskeget Channel. 

Within a few seasons, a great change has come over the numbers 
and movements of the scup. In bays and salt ponds they have 
become nearly extinct ; while in the great channels and near the 
mouths of the bays they still are found in considerable though 
diminished quantities. Witnesses disagree as to the exact time 
when scup began to fall off; indeed, it is not probable that they 
diminished uniformly and in all places at once. Some aver that a 
falling off was to be noticed only four or five years after the first 
traps were set, which would make the year 1850. But most of the 
testimony goes to show that it was between 1856 and 1866. Cer- 
tainly in 1860 scup were still plenty at Point Gammon and in 
Lewis's Bay, near Hyannis. Four causes are alleged for this dimi- 
nution : 1. Impurities in the water. 2. Want of food. 8. Traps. 
4. Blue-fish. As to the first, although gravely put forward by cer- 
tain witnesses, it is too absurd to be for a moment entertained. 
The idea of poisoning all the waters of Buzzard's and IS'arraganset 
Bays by a few mills and print-works near Providence, Greenwich 
and Fall River is ludicrous in itself; aud it is moreover well known 
that live fish are found in plenty in close proximity to these very 
manufactories, and that live clams lie directly in the track of the 
drainage of petroleum works.* As to want of food, it was stated 
that the five-fingers {Asterias) had destroyed certain great mussel 
beds, which were feeding grounds. But the dredgings of Prof. 
Baird, during the present season, have shown, not only that there 
were vast mussel beds still existing, but that the tautog were no 
more plenty there than elsewhere ; and, moreover, the sea-water 
was everywhere full of the salpae, fish eggs, minute Crustacea, jelly- 
fishes, and small worms, which are usually found in such localities. 
The real perplexities of the question are to be found when the 
effects of traps and of blue-fish come to be considered. The traps 
can diminish scup in the way they have been diminished, only under 
certain conditions, to wit (a.): all the scup must stand in between 
Montauk Point and Gay Head ; because any that advanced through 
Muskeget Channel would nowhere find enough traps to interfere 
much with them between Waquoit and Monomoy Point, and there- 
fore they would have continued abundant within these limits, while 
they would have grown scarce in Vineyard Sound and in the two 

* See also Report of Mass. Commissioners for 1865, pp. 18 and 53. 



36 INLAND FISHERIES. [Jan. 

great bays (b.). All, or nearly all, the fish must, as they come in, 
crowd towards the shore, at certain points, and must pass within 1,200 
feet of it, because that is the usual length of the trap leader* (c). 
All, or nearly all, these scup must be captured before they have 
spawned, otherwise the race would be abundantly continued, despite 
the capture of the parents. Each of these conditions is fulfilled, 
according to the opponents of traps. 

The scup, they say, do all stand in as indicated above ; they are 
full of spawn and they encounter a different pressure and a varying 
temperature, which render them slow and lethargic; and, in this 
condition, they are swept by tides and eddies against certain points 
of the shore, or of themselves seek the sunshine in protected 
nooks and bays, where they are captured by hundreds and thou- 
sands of barrels. If, on the contrary, they were let alone, they 
would soon cast their spawn and then would spread far and wide, 
as a bottom fish, greedily taking the hook. Under the present sys- 
tem, vast quantities of gravid fish are thrown on the market in May, 
but in the summer and early autumn it is hard to get any. The 
trappers admit the chief facts, though not the inference. They 
agree that the scup come in altogether between the Vineyard and 
Montauk Point ; that they are " numb " and full of spawn at that 
time, and that during warm spells they stand close in, often seek- 
ing quiet coves ; while, in cold, easterly weather, they keep off in 
deeper water. They admit, further, that the quantity taken is very 
great,! but maintain it is but a small proportion of the whole. 
They are lame in two ways ; in the first place, they could give no 
reasons, that were tenable, for a diminution which they fully admit- 
ted. In the second, they were usually very shy about giving any 
testimony at all before the Rhode Island Committee. Nevertheless, 
it does not follow that they have the wrong of it. The question 
must be answered by a collection and a comparison oi facts. It is 
clear, that the scup approaches the shore in a way differing from 
that of the alewife, a hardy, active fish, which does not spawn till 
later, and then in fresh ponds. It may therefore be that scup will 
fall en masse into a trap, which alewives would under certain cir- 
cumstances avoid, as has been nearly proved in the case of the 
Waquoit weir. 

* In Plate I., the lengths of the pounds and weirs are exaggerated so as to make them 
distinct. They are made to project one-half to three-quarters ot a mile, whereas one-quar- 
ter of a mile would be nearer the truth. 

t In 1807, six traps at Saugkonnet Point took 10,000 barrels of scup. Next year, how- 
ever, by reason of bad weather, they got only about a third as many for the whole season 
(B Tollman). In 1870, about 6,000 barrels of scup were taken by the Saugkonnet Point 
traps before May 16th (D. Church). 



1872.] SENATE— No. 3. 37 

The blue-fish theory is an old one, but new in its application to 
scup. Mackerel and menhaden are, as is well known, driven away 
by them, but it has always been maintained that scup were too 
spiny to be a favorite food, and practically were let alone in favor 
of fatter and less bony prey. The witnesses in the Massachusetts 
and the Rhode Island investigation were unanimous in their asser- 
tion that a scup in the stomach of a blue-fish was a very rare thing ; 
Prof Baird, however, has found many scup in their maw. It is 
true that these were usually from scup traps, and the blue-fish may 
have attacked them simply because they were the only prey at 
hand. On the whole, it will be perhaps pretty near the truth to 
say, that, although the blue-fish blindly destroys almost everything 
that comes in his way, his main food is the soft fishes and mollusks, 
such as menhaden, mackerel, alewives and squid. Scup were abun- 
dant Avhen the whites first visited the country, certainly from 1621 
to 1642. At some time after this, not yet ascertained, they disap- 
peared wholly, and, towards the end of the last century, were not 
known in our waters. About 1794 they reappeared, and became 
abundant. In 1864 they decreased very much and are at present 
comparatively scarce. If now the blue-fish are the cause of scarcity, 
there ought to be some correspondence in their dates of appear- 
ance and of disappearance. They were plenty near Nantucket 
from 1659 to 1764, when they suddenly and totally disappeared, to 
reappear in 1880. Now it would seem that scup did not reappear 
till thirty years after the blue-fish went away, to wit in 1794, and 
when the blue-fish came back in 1630, they found scup abundant 
and lived side by side with them for thirty years, before the latter 
began decidedly to decrease. It is hardly in accordance with what 
is seen in nature, to suppose that a cause so active would take so 
long to act, or that, when it ceased to act, so long a time would be 
needed to restore the original state of things. And now, in the 
midst of this theorizing and seeking for evidence, rises a phenomenon 
w^hich puzzles both parties to the dispute. About the first of June 
of this year (1871) those trappers at Saugkonnet Point who had 
kept their netting down until that time, were astounded to find 
their traps clogged with myriads of " dollar scup," little fish about 
the size of a Spanish dollar. They were tipped out of the bowls 
by hundreds of barrelsful. This swarm struck first at Saugkonnet, 
then at Beavertail ; and thence apparently it slowly worked up the 
bay, so that in July these little scup were schooling round the 
wharves of Greenwich and Providence. In August they were still 
among the shallows, and were plentiful in the more eastern waters, 



38 INLAND FISHERIES. [Jan. 

at the extreme head of Buzzard's Bay and in the neighborhood of 
Hyannis. 

The weir owner at Wood's Hole had had his nets established for 
seven seasons but had never before witnessed this spectacle ; and 
the same sort of evidence was given by other weir men. Benjamin 
Tallman, in his testimony, already cited, speaks of a large quantity 
of such little scup taken by a seine in 1864; and of another consid- 
erable batch brought up from deep water in a purse-seine, about 
1855. It is to be observed that this invasion is nothing but an 
abundant " late run " of yearling fish, coming in its due season. 
The aiTiiy of scup advancing to its spawning grounds in May is 
preceded by a few skirmishers, and is in two or three divisions, of 
which the first is usually the most numerous and contains the 
oldest fish ; at an interval of perhaps two weeks there follows the 
second, and then the third, which is usually fewer in numbers and of 
smaller individuals. Sometimes, and in some places, the gTcat and 
the smaller scup come mixed together, and the " runs " are not well 
defined. As with most schooling fishes, the young scup doubtless 
come last ; and the phenomenon of this year's run had two peculiari- 
ties : firsts it is more abundant by many hundred fold than an^i:hing 
that has been seen since a dozen or fifteen years ago, when all the 
shallows, in midsummer, were full of these little yearlings ; second, 
instead of following the deep channels at the mouth of the bay, the 
swarm struck du*ectly to the coast on entering, and fell into the 
traps and weirs which chiefly are there set (PI. H.). This last is, to 
be sure, an hypothesis, but will be useful as a guide to future inves- 
tigation. Mr. Luce, in his testimony, stated that the big scup 
coasted the shore of the Vineyard, while the smaller ones moved 
outside^ in deeper water. In other words, the spawning fish sought 
their grounds, while those that spawned later, or that were too 
yomig to spawn at all, kept in the ofling. The yearlings (assum- 
ing that they do not carry spawn) would come in and spread over 
the warm shallows simply to seek food ; and this, also, the old fish 
do after they have cast their spawn ; only they spread out in deeper 
water, where they remain till the first frosts warn them to depart 
from the coast. Should such a view of their movements prove the 
coiTect one, the invasion of " dollar scup " would simply be a noimal 
movement of yearlings, which, owing to unusual warmth of water, 
or for some other reason, struck the first points of land on entering 
Xarraganset Bay, instead of holding to the main central channels. 
The question would be narrowed down to accounting for their vast 
numbers^ so sudden and so im wonted. The anti-trap men jumped 



1872.] SENATE— No. 3. 89 

to the conclusion that these little fishes were the progeny of this 
year's (1871) hatch; and accounted for the abundance by the very 
early appearance of the breeding fish, which stood in by the last of 
April, whereas they usually do not appear till the tenth or the twelfth 
of May. Consequently the trappers had not generally their lint on, 
and the first run, in good measure, escaped capture. But the 
" dollar- scup" were ?<2s^ year's (1870) hatch and not this year's, 
which, on the first of June, would not be larger than a squash seed. 
The theory would properly account for an abundance of this year's 
hatch ; and, as a fact, the little scup, two or three months old, 
might be seen in gi'eat numbers, during August, feeding close to 
the shore. If, next year (1872), there should be a great run of two- 
year-olds (hatch of 1870), and if this nm should spread over all the 
bays, and should be taken by hook and line during the entire season, 
as of yore, then it might fairly be laid down that the traps were not 
the cause, or not the chief cause, in the diminution of scup. In 
like manner it might then be said, though with less force, that the 
blue-fish were not a chief cause of the scarcity of scup ; because, 
although blue-fish have notably diminished these last three or five 
years, and therefore scup might properly increase, yet the decrease 
in blue-fish has neither been so great nor so sudden as to warrant a 
sudden increase in scup, such as this would be. And if neither 
traps nor blue-fish can be convicted, it will only remain to say that 
the diminution has been one of those changes in the numbers or the 
location of fishes, for which science can at present give no reason. 

That there has been a change of location as well as a diminution 
is quite apparent ; for, whereas thousands of barrels are taken at 
Saugkonnet Point, along the south part of Aquidneck and at Beaver- 
tail, in the upper part of the bay they are nearly extinct. A 
change, too, there has been in their stay, for, whereas the tautog 
grounds, all over the bay, were once so infested during the summer 
by scup that a hook could scarcely be got to the bottom, nOw they 
are on the shores during a part of May, and thereafter are seen no 
more. All this the anti-trap men explain very simply, by asserting 
that the big scup are practically annihilated each season by the 
traps, and that the supply is kept up only by the spawn which is 
shot in deep water before they strike the coast. 

The same line of observation and reasoning that has been applied 
to scup will, with little change, apply to tautog, rock-bass, striped- 
bass and other " white fishes " and " bottom fishes " whose decrease 
has been complained of. Observations^ conducted through several 
seasons by men of learning and of impartiality, are the only means 



40 INLAND FISHERIES. [Jan. 

to real knowledge in this pexplexed question. If the governments 
of the States of Rhode Island and Massachusetts have any forecast 
they will see to it that such observations be made. 

In this slight sketch, based, as it needs must be, on scanty and 
imperfect information, I have avoided dogmatic statements and 
rounded conclusions. I have tried to show the problem in all its 
crudeness, and to point out, both directly and by implication, the 
great gaps which must be filled before it can take on a scientific 
form. 



1872.] SENATE— Xo. 3. 41 



PISHES TAKEX IX THE TAQUOIT ¥EIR, 

April IS to Juxe IS, 1871. 



[Most of the nomenclature is hy Dr. Franz Steindachner; and some notes by Prof. Agassli 
are added, marked Ag.] 



Labrax lineatus. 
Sjn. Scicena lineata Bl. 

Labrax Uneatus C. Y.— Storee, Fish. Mass. p. 6, pi. i., fig. 4. 
Striped Bass. 

Only a few taken. TMs is one of the fishes -which are said to have de- 
creased, and whose scarcity is laid to the weirs. In the midtlle of August, 
Prof. Baird found the young about three inches long in the salt water near 
Wood's Hole. The striped Fundulus is often mistaken for a baby bass. 
Like the Bar (Labrax lupus) of Europe, our bass afiects estaaries and tidal 
ponds, where many pass the winter on a muddy bottom. They also mount 
rivers beyond the influence of tide. In salt water they congregate in cur- 
rents and tide-rips, and, during the warm season, seem to prefer swift water. 

Centropristes atrarius. 
Syn. Perca atraria Les:s". 
Perca varia Mitch. 

Centropristes varius Storek, p. 10, pi. ii., fig. 4. 
Centropristes nigricans C. V. — Df.kay — Holbr- 
Black or Rock Bass, Mass. Blue-fish., R. I. 

Rare in the weir. This is caUed blue-fish in Rhode Island, and our bhie- 
fish (Temnodon) goes by the name of horse-mackerel. The weirs are 
accused of lessening the numbers of this fish. 

Pagrus argyrops. 
Syn. Spants argyrops Lrs-s*. 

Pagrus argyrops C. Y. — Storer, p. 49, pi. x., fig. i. 
Scup. Scapaug. Big Porgee. 

In 1621, Massasoit entertained his half-famished Puritan visitors with 
" two fishes, like bream, but three times so big, and better meat."* This was 
on the shore of Buzzard's Bay, and the fishes can have been nothing else 
than scup ; for the chief is described as having shot them, and no other fish 
of this sort could have been killed near the shore with an arrow. The 
Englishmen doubtless meant what is still called in Europe the - common sea 

• Ma5s. Hist. Soc. Coll., vol. riii , 2-36, 
6 



42 INLAND FISHERIES. [Jan. 

bream,"* whose outline is much like that of our scup. Roger "Williams, in 
his key into the language of the Indianst (1642), says : "Mishcup" (scup), 
" the bream. Of this fish there is abundance, which the natives dry in the 
sun, and smoke ; and some English begin to salt. Both ways they keep all 
the year ; and it is hoped they may be as well accepted as cod at market, 
and better, if once known." Plainly this species was plenty in Buzzard's 
and Narraganset Bays in 1621 and 1642. From 1794 to 1803 the sheep's- 
head (Sargus ovis) is spoken of as common at Compton, E. I., and the 
southern Cape towns, but scup is not mentioned. J This is within the mem- 
ory of men still living: and one witness, dwelling at Wood's Hole, recollects 
that, at the beginning of the present centuiy, the scup was shown liim as a 
new fish. It seems, then, that, when the English first landed, scup were 
plenty, that they afterwards disappeared, and that they reappeared about 
1800 ; and, furthermore, it is known that in our own time they greatly di- 
minished from about 1860. TVbether they have had more phases of plenty 
and scarcity, can only be determined by a diligent search among old records. 

Umbrina nebulosa. 
Syn. Scicena nebulosa Mitch. 

Umbrina alburnus Dekay. — C. V. 

Umbrina nebulosa Storer, p. 4:6, pi. ix., fig. 4. 

King-fish. 

Scarce in May and June. During August a considerable number were 
taken with the hook, to the surprise of the inhabitants, most of whom had 
never seen such a fish. It has always, as far back as 1833, been reckoned a 
rare visitor, although stragglers have been taken within Massachusetts Bay. 
Its abundance this season is only in keeping with the appearance of an unusual 
number of southern species in the waters on the south shore of Cape Cod. 
Despite the discussion by several authors, this fish is not yet clearly estab- 
lished as distinct from that called whiting in Charleston, S. C. {Umbrina 
alburnus). Even the distinguished ichthyologist. Dr. Holbrook, seems not 
to have compared specimens side by side, which must be done before the 
question can be settled. The king-fish, or southern whiting, is excellent 
when broiled, and would be a great addition to our summer market. "When 
Charleston was closely blockaded, and fishing was a hazardous occupation, 
the rebel commandant, who was a bon vivant, gave SlOO, " Confed.," for a 
string of whiting. 

Otolithus regalis. 
Sym Lobnts squeteague ^Iitch. 
JoJinius regaJis Bl. — Schx. 

Otolithus regalis C. V. — Richds. — Storer, p. 44, pi. ix., fig. 1. 
Squeteague. "Weak-fish. 

Common in June, which is the spawning season. This fish is highly in- 
teresting as one of those which has appeared and disappeared alternately 



* Pagetlus centrodontus. See figure in Couch's Fishes of British Islands 
t Mass. Hist. Soc. Coll., vol. iv., p. 224. 
X Mass. Hist. Soc. Coll., vol. ix., 2a2, &o. 



1872.] SENATE— No. 3. 43 

on our coast. In 1803 it ^as abundant in Ehocle Island * and very plenty at 
Provincetown as late as 1820.t In 1832 it deserted Vineyard Sound (and 
the northern part of the Cape even before that), very soon after the reap- 
pearance of the blue-fish. J And now, for five or six years, it has grown 
more abundant, apparently j«creasing- as the blue-fish cZecreased, until this 
season, when the weirs have taken hundreds at a haul. 

Hemitripterus acadianus. 
Syn. Cottus acadianus Pexx. 
Scorpcena flava Mitch. 
Hemitripterus americanus C. V. 
Hemitnpterus acadianus Stoker, p. 35, pi. vii., fig. 4. 
Yellow Sculpin. 

Rare. Belongs to deep water. 

Acanthocottus virginianus. 
Syn. Scorpus virginianus Willougiiby. 
Cottus scorpius Schcepf. 

Cottus octodecimspinosus Mitch. — C. Y. — Richds. 
Acanthocottus virginianus Gm. — Stoker, p. 28, pi. iv., fig. 2. 
Southern Sculpin. Common Sculpin. 

Plenty in April ; scarce in May ; none taken in June. Plainly, the scul- 
pin approaches the shore during April, in large schools, although it is com- 
monly regarded as a solitary fish. On the 20th of April over 500 were 
captured. 

Prionotus lineatus. 

"Syn. Tiigla lineata Mitch. 

Prionotus strigatus C. V. 

Prionotus lineatus Dekay.— Storer, p. 16, pi. v., fig. 4. 

Lined Robin. 

Very rare in the weir. 

Prionotus palmipes. 
Syn. Trigl a palmipes Mitch., 431, pi. iv., 5. 

Prionotus p>almipes Stoker, Fish. Mass., p. 18, pi. v., fig. 1. 
Prionotus pilatusP Stoker, p. 20, pi. vi., fig. 1. 
Prionotus carolinus Cuv. & Vai,. in Giinther, vol. ii., 192. 
Sea Robin. 

Verj^ abundant. The question arises, whether the P. palmipes and P. 
pilatus are not the same species. The chief diflerence in Storer is, that the 
pectoral appendages in P. pilatus are taj^ering at their extremities, while 
they are like a spatula in P. palmipes. Our specimens, which are very nu- 
merous, all have the spatula-like ends, and the stripes on the second dorsal 

* Collect. Mass. Hist Soc, vol. ix., p. 202, 1S03. " Squeterg.'* 

t Atwood. 

+ Storer, Fishes Mass., p. 45. 



44 INLAND FISHERIES. [Jan. 

and on the body are as in P. palmipes, while the spot and lines in the first 
dorsal are as in P. j.ilatus. The ends of the pectoral appendages may be 
rounded by drying. Again, P. caroUnus may also be the same. The eggs, 
which are bright orange, were thrown up in quantities during the last third 
of May, on the beach of the inner part of Waquoit Bay ; and the females 
still had developed spawn in them. 

Lophius piscatorius. 

Syn. Lophius piscatorius JjVS^. 

Lophius americanus Dekay. — Stoker, p. 101, pi. xviii., fig. 2. 
Goose-fish. 

Although a most disgusting animal, it must have been often eaten by the 
Indians, since the bones are found in the shell-heaps.* 

Scomber scombrus. 

Syn. Scomber scomber Linn. 

Scomber grex and vernalis Mitch. — Richds. 

Scomber vernalis Stoeer, Fish. Mass., p. 54, pi. xi., fig. 2. 

Common Mackerel. 

Very common in May and June on some parts of the coast, but they do 
not stand in towards Waquoit, and are not taken in large numbers there. 
The identity of our mackerel with that of Europe, may be considered as 
pretty well established; and the same remark will very likely hold good for 
many of our cold-water fishes, such as the cod and herring, together with 
several of the sharks. Dr. Steindachner pronounces our horse-mackerel 
{Thynnus secundo-dorsalis Storer) to be the true classical tunny of Europe 
{Thynnus tJupmus), whose fishery has been so important from ancient 
times. This is not the only instance of a fish being highly valued in Eu- 
rope, and despised in this country. The Americans are a people extrava-- 
gant in their food, and in nothing more so than in their fish. 

Pelamys sarda. 

Syn. Scomber sarda Bl. 

Pelamys sarda C. V. — Storer, p. 63, pi. xi., fig. 5. 
Striped Bonito. Skip Jack. 

The season has brought with it many of the usually scarce bonito, a 
species well known in the Mediterranean and on the Atlantic coast of Spain. 
Forty were taken at one haul of a weir at Wood's Hole in September. 

Temnodon saltator. 

Syn. Gasterosteus saltatrix Linn. 
Scomber saltator Bl. 
Scomber plumbeus Mitch. 

Temnodon saltator C. V. — Storer, Fish Mass., p. 81, pi. xv., fig. 1. 
Blue-fish, Mass. Horse-mackerel, R. I. Tailor, N. J. 

Common in June. Its first appearance at Waquoit for the last thirteen 
years, was as follows: 1859, May 16; 1860, May 15; 1861, May 17; 1862, 

* Wyman in American Naturalist, No. xi., 1867. 



1872.] SENATE— No. 3. 45 

May 13; 18G3, May 15; 1864, May 17; 18G5, May 15; 1866, May 15 ; 1867, 
May 14 ; 1868, May 19 ; 1869, May 17 ; 1870, May 16 ; 1871, May 24. For the 
last five or six years it seems considerably to have decreased ; and, during the 
past season, it has been decidedly scarce, except small ones of two pounds or 
three pounds. No sea animal of our coast attracts more attention now, than 
the blue-fish. It is the swift and hungry wolf of the ocean ; for whereas 
many fishes lie in w^ait for their prey, or seek it with stealth and caution, 
the blue-fish, with untiring speed and hunger insatiable, furiously pursues 
it. The charge of a band upon a school of menhaden is like the wild attack 
of the Huns on a peaceful Roman town ! In panic terror the poor men- 
haden fly, crowding wildly towards the shallows, and even running them- 
selves aground in their distraction, wiiile in their rear press their savage 
I enemies, throwing themselves out of water in their fury, and marking their 
track by blood and torn flesh. Their object seems as much killing as eating, 
and it is asserted, on pretty good evidence, that, when gorged with prey, 
they will cast up the contents of the stomach and begin again. They pro- 
duce two difl'erent eftects, driving away some flsh : diminishing others (as it 
is asserted), by actually killing them. The fishes that are driven are chiefly 
the mackerel and menhaden — especially the former — whereas the local fishes 
are not driven ofi" in a body, although it is quite possible they may be dimin- 
ished through the destruction of their young. Says the precise Zaccheus 
Macy, " From the first coming of the English to Nantucket (1659) a large 
fat fish called the blue-fish, thirty of which would fill a barrel, was caught in 
great plenty all round the island, from the first of the sixth month (June) 
to the middle of the ninth month (September), but it is remarkable that in 
the year 1764 * * * they all disappeared ; and that none have ever been taken 
since. This has been a great loss to us.* Hence we know that the blue-fish 
were here from 1659 to 1764, 105 years. We further know that they reap- 
peared about 1830, in the same waters. They were therefore absent from 
Vineyard Sound Q>Q> years. And they have continued there to the present 
time, 41 years. Their disappearance was sudden and inexplicable ; their 
reappearance was more gradual. They first attracted attention as little fish 
caught by boys off the ends of wharves ; and they did not double Cape Cod 
in force until 1847. 

Peprilus triacanthus. 

Syn. Stromateus triacanthus Peck. 
Stromateus cryptosus Mitch. 
Peprilus cryptosus C. Y. 
Bhombus triacanthus Deicvy. — Storer, Fish. Mass., p. 84, pi. xv., 

fig. 4. 
Butter fish. 

Cyclopterus lumpus. 

Syn. Cyclopterus lumpus Lixx. — Bl.— Cuv. 

Lumpus anglorum Aldrov. — Willoughby. — Storer, Fish. Mass., 

p. 208, pi. xxxii., fig. 2. 
Lump -fish. 

Scarce in the weir, though not an uncommon fish in our waters. 
* Mass. Hist. Soc. Coll., Vol. iii,, p. 159. 



46 INLAND FISHERIES. [Jan, 

Ctenolabrus burgall. 

Syn. Labrus burgall Sciicepf. 
Lahrus chogset Mitch. 
Ctenolabrus chogset C. V. 

Ctenolabrus cceruleus Stoker, p. 108, pi. xx., fig. 1. 
Perch. Gunner. Nipper. Chogset. 

The meshes of the weir were small enough to stop a large chogset, and 
yet only one or two were captured, which shows how a fish may swarm all 
along a coast and yet be absent from certain localities. It is the only fish 
which is admitted on all hands to be as plenty as ever. Perhaps its habit 
of hugging the rocky shore may protect it from predatory enemies. 

Tautoga onitis. 

Syn. Lahrus onitis Linx. 

Tautoga americanus Bl. — Schn. 

Labrus tautoga Mitch. 

Tautoga nigra Guv* & Val. 

Tautoga americana Dekay. — STORER,Fish.Mass.,p. 110,pl.xx., fig. 2. 

Tautog, Mass. Black-fish or Tautog, Rhode Island. 

Great complaint is made of the scarcity of this valued species, both north 
and south of the Gape, but especially near the mouth of Narraganset Bay, 
where they are said to be not more than one-eighth as numerous as they 
were a score of years ago. 

In the legislative investigation several witnesses, independent of each 
other, testified that, about the years 1841 and 1856, there came on a sudden 
cold in the autumn, which killed tautog, rock bass and other fishes, and they 
were washed ashore in numbers. The next year, in each case, these fish 
were very scarce indeed ; but, in three or four seasons, they gradually re- 
gained their numbers. This shows that such fishes are, as Rimbaud says, 
local, and are not the chance ofi'-shoots of great armies of fish which inhabit 
the deep. In September the tautog often approach the shallows to be 
safe from the equinoctial storms ; but immediately thereafter, as the colder 
weather begins, they slide gradually downward towards deeper soundings. 
It is at this moment that they are most exposed. The phenomenon of de- 
struction of fishes by slight changes of temperature is familiar, but difficult 
of explanation. 

Rhombus maculatus. 

Syn. Pleuronectes maculatus Mitch., Rep. in part on Fishes of N. Y. 
Bhombus aquosus Mitch. Cuv. Regne Animal. 
Bhombus maculatus Stoker. Pishes Mass., p. 204, pi. xxxi., fig. 4. 
Poison flat-fish. 

The most common of the flat-fishes in May and June. It does not appear 
why it is called " poison." 



1872.] SENATE— No. 3. 47 

Pseudorhombus melanogaster. 

Syn. Pleuronectes melanogaster Mitch. Fish. New York, p. 390. 

Platessa oblonga Dekay (en syn. Nat. Hist, of New York, Part iv., p. 

299). 
Platessa ocellaris Dekay, 1. c, p. 300. 
Platessa oblonga Storer, Fish. Mass., p. 301, pi. xxxi., fig. 2 (en syn. 

Pleur. ohlongus Mitch.). 
American Turbot. Flat-fish. 

This species is first described by Mitchill after a scarce variety, with 
both sides of the fish dark-colored. An examination of Mitchill's figures 
shows that what he calls P. melanogaster, is what Storer calls P. oblonga ; 
and what Mitchill calls P. oblonga, is Storer's P. quadrocellata. Common in 
the middle of June, and a few taken in May. 

Pseudorhombus oblongus. 

Syn. Pleuronectes oblongus Mitch. Fish, of New York, p. 391. 
Platessa quadrocellata Storer, p. 203. pi. xxxi., fig. 3. 
Four-spotted fiat-fish. 

Quite abundant. 

Pleuronectes americanus. 

Syn. Pleuronectes americanus Walb. 
Pleuronectes planus Mitch. 

Platessa plana Storer, Fish. Mass., p. 195, pi. xxx., fig. 2. 
Flounder. 
Not common, and comes later than the turbot or the flat-fishes. 

Pleuronectes ferrugineus. 

Syn. Platessa ferruginea Storer, p. 198, pi. xxx., fig. 4. 
Rusty Flounder. 

Phycis americanus. 

Syn. Enchelyopus americanus Bl. — Schn. 

Phycis americanus Dekay. — Storer, Fish. Mass., p. 187, pi. xxix., fig. 3. 
Hake. 

Rare in the weir. 

Gadus americanus. 

Syn. Morrhua americana Storer, Fish. Mass., p. 165, pi. xxvii., fig. 4. 
Common Cod. 

It is highly probable that our codfish is identical with that of Europe 
{Gadus morrhua). 

The following interesting abstract on the Summer cod-fishery of the 
Lofibden Islands, is by Dr. G. O. Sars, son of the celebrated Michel Sars. 
It was communicated by Prof. Agassiz : 

" It was my intention to continue the investigation of the young of the 
' winter-cod,' which I had pursued the previous year. I then showed, that 



48 INLAND FISHERIES. [Jan. 

the fish often considered as a separate species, and known on the north- 
west coast of Norway by the names of Smaagjed, Tarefisk and Griiudfisk, 
is nothing but the young of the winter-cod. I further observed that the 
great variations in color are only the effects of different bottom and differ- 
ent food. 

" It was my task this year to follow the further development of the Smaag- 
jed during the summer. The conditions were now quite different ; for where- 
as during the winter I could, from a boat or from the beach, easily study 
my objects, now the fish had retired to the deep water and could only be 
got by hook and line, — a difficult matter, by reason of the scarcity of bait, 
for the mussel rocks had been ransacked by the winter fishermen, and her- 
ring were not to be had. Beginning on the 20th of May, at a place called 
Skraaven, I set my line in 20 to 30 fathoms water in the sandy channels 
of the outer holms, but got only fish too large to be yearlings. I then set 
in the ' sculls ' near the rocks, and took great numbers of small cod, cor- 
responding perfectly with the Tarefisk, and which were colored of a brown- 
ish red by the tare or rock- weed (Laminaria). These scidls are very dan- 
gerous to approach, especially in the winter time, and are characterized 
by a periodic ground-breaker. The sea will appear perfectly tranquil for a 
time, when suddenly there will arise gently, over the scull, a low, broad 
pyramid of water, which as gently descends, and again the surface is un- 
ruflled. The wary fishermen mark well these upliftings, and keep the boat 
away from them. Presently you observe that the pyramid has again risen, 
but with increased size and with smoke curling from its apex : there is a 
sort of forward pushing motion and a sullen roar, and in an instant the sea 
rises in a vast, glittering, green bank, capped with devouring foam. "With a 
fearful crash it precipitates itself to the very bottom, leaving a great circle 
of white froth. Your boat, safe in the ofling, is lifted high on a huge wave, 
and the distant thunder on the beach announces that the great breaker has 
struck. The hapless boat that gets caught over one of these sculls is dashed 
in a hundred pieces against the rock bottom. These violent periodic ground- 
breakers are what attract the Smaagjed, for they wash out the small crabs 
from their hiding places among the sea-weed, and the young cod, dashing 
forward with the returning sea, devour them greedily. I thought now I 
should get plenty of yearlings on the sea-weed groimd daring the whole 
season, but I was mistaken. Towards the end of June they almost wholly 
disappeared from that locality and were captured only near sandy channels. 
Their color, too, changed from the red-brown of the sea-weed to a fine 
greenish with silvery sides. In their stomachs were found quantities of 
Su\. (Ammodyteslaiicea : sand eel) , which now were approaching the coast, 
and the tarefisk had evidently left the crustucea to prey upon them. The 
Siil, less common and important in southern Norway, is abundant on the 
north-west coast, and is held in high esteem. Although too slender to be 
captured in nets,* it is taken by a large, coarsely woven cloth, worked by 
several boats. This cloth is slipped under a school of Siil, and the corners 
being raised the catch is dumped into one of the boats and piled in heaps 
on the shore. These heaps are left there without further care, and the mass, 

*The Americans, who call it sand-eel or lant (English, sand-launce), take it for cod bait 
with a fine-meshed seine; and the central breadth of such a seine is called a lant-bunt. 

T. L. 



18r2.] SENATE— No. 3. 49 

half putrid, is accounted good food bv the iDhabitants, and is al*o served to 
animals. The cod are more dainty and will not touch stale fish of any 
kind.* Therefore the Sul for the fishery are got by digging in the sand 
where they have buried themselves, and where, at this season, they deposit 
their spawn. I took in the sandy channels plenty of cod, of one, two and 
three years ; also some very large ' Siilcod,' three feet long, and these I 
saw were the sjime as the ' winter-cod,' except that the spawn was but 
little developed. At this season, also, came the Sei {Gad us carbonarius : 
pollack). It was a singular spectacle to watch the sea mews sitting in 
solemn lines and in perfect silence along the rock ledges, their heads all at 
one angle. Suddenly, and as if by common impulse, they would spread their 
wings, and with a shriQ cry hasten towards a foamy surface on the sea. 
This was occasioned by the Sei, which had rushed to the surface iu pursuit 
of a school of Sill, and the bu'ds were coming to share the prey. Thither. 
too, came the fishermen and troUed with artificial minnows, taking, strange 
to say, some cod with their other fish, which shows that cod occasionally 
are attracted to the surface. Later in the season, the cod refused Sul, which 
seemed to be because they were in pursuit of the young herrings, then 
abimdant in Yesttjord." 

Merlucius vulgaris. 

Syn. Gadus nierlucius Lixn'. 

Merlucius albidus Stoker, Fish. Mass.. p. 1S5, pi. xxviii., fig. 2, 
TThitiog. 

Only one specimen taken in the weir. This is the hake of the English, 
and the merlii or merlan of the French, a fish common in Europe, and known 
to the ancient Greeks. Its appearance on our shores is inconstant. After 
being scarce, it became plenty about 1840, and especially at Provincetown, 
where it clogged the mackerel nets ; after 1847, when the blue-fish rotmded 
the Cape, it grew scarce there, and now is a rare species. 

Alosa mattowocea. 
Syn. Clupea mattowocca SIttch. — Df.kay. 

Alosa Uneata Stoker, Fish. Mass., p. 162, pi. xxvli., fig. 2. 
Hickory Shad. 

The varied and branching " vessels," on the sides of the head, seen in the 
species of this genus, are the water system. Ag. 

Alosa tyrannus. 
Syn. Clupea tyrannus Latkobe. 

Alosa tyrannus Dekay. — Stoker, Fish. Mass., p. 156, pi. xxvii., fig. 1 

{not pi. xxvi., fig. 3). 
Alewife. Herring (C^e Cod). 

There seems no doubt that the figures of Srorer's plates are changed 
about ; what he caUs A. cyanonoton would appear to be the large-headed 

• Cod. although they insist on fresh fish, prefer their mollusca stale, and a spoiled clam i« 
excellent bait for them. x. l. 



50 INLAND FISHERIES. [Jan. 

ale wife {A. tyrannus), called gray-hack by fishermen; while the figure 
marked A. tyrannus is certainly not that species, but corresponds well with 
the black-belly, so called, a species which runs into our fresh waters to 
spawn a little later than the gray-back, although to some extent mixed with 
it.* This black-belly, called also blue-back, is probably A. cyananoton. 

Alosa cyanonoton? Storer, Fish. Mass., p. 161, pi. xxvi., fig. 8 {not 

pi. xxvii., fig. 1). 
Black-belly or Blue-back herring or alewife. 

Storer mentions the " Black-belly " under the head of Alosa tyrannus, but, 
as has been shown, it is pretty plainly a separate species, and agrees well 
with A. cyanonoton, which he supposes never comes to fresh water. 

Alosa prsestabilis. 
Syn. Clupea alosa Mitch. 

Alosa prcestabilis Dekay. — Storer, Fish. Mass., p. 154, pi. xxvi., fig. 2. 
Common Shad. 

It will be seen in table IV. that in 1868 over 2,000 shad were taken, 
although the catch is usually quite small. These were what fishermen called 
spawned shad, that is, without any developed ova in them. Their appear- 
ance is irregular. In 1840 there were great quantities of shad gilled in the 
neighborhood of Monomoy Point, and these may have been such spawnless 
fish. Possibly such exceptional wanderers may belong to schools whiclj 
have already spawned, early in the season, in some southern river. 

Brevoortia menhaden. 
Syn. Clupea menhaden Mitch. 

Alosa menhaden Storer, p. 158, pi. xxvi., fig. 4, 

Brevoortia menhaden Gill. 

Menhaden. Hard-head. Moss-bunker, Va. and N. J. 

A fish inexhaustible in quantity, but variable in locality. They are 
specially liable to be chased by blue-fish, which sometimes has the effect to 
drive them away, and sometimes to drive them for refuge into bays which 
then become packed with countless myriads of them. They are taken in 
vast quantities and pressed for their oil, of which there are from one to five 
gallons in each barrel of menhaden. The pumice is sold to the manufac- 
turers of phosphate manures. The Wood's Hole manufactory uses, when 
in full operation, from 8,000 to 11,000 tons annually of menhaden. One oil 
maker produced 142,000 gallons of oil in 1870. At 3 gallons to the barrel, 
47,333 barrels would be required; and at 250 fish to the barrel, there would 
be 11,833,350 fish, which at a pound apiece would make 5,916 tons, nearly 
equal to the weight of fish sent each month to the London market. 

Belone truneata. 

Syn. Belone truneata Lesueur. — Storer, p. 136, pi. xxiv., fig. 3. 
Billed Eel. 
Only two specimens taken in latter part of May. It was common at 
Wood's Hole in August. 

* See Report for 1868, p. 7. 



1872.] SENATE~No. 3. 51 

Fundulus pisculentus. 
Syn. Esox pisculentus Mitch. 

Fundulus pisculentus C. V., Storer, Fish. Mass., p. 128, pi. xxiii., 

fig. 3-4. 
Mummy-chub. Friar. 

Spawns in June. The female in both species is larger than the male, and 
F. pisculentus grows a little larger than F. majalis. 

Fundulus majalis. 
Syn. Cohiiis majalis Art. 

Poecilia majalis Bl. — Schn. 

Bydrai'gyra flavula Storer, p. 131, pi. xxiii., figs. 5 and 6. 

Bass-fry. 

In June, during the spawning season, the males are so brilliantly colored as 
easily to be mistaken for another species ; on the gill-cover is a great coal- 
black spot ; lines of greenish-blue ornament the sides of the head ; the fore 
part of the belly and throat is orange, and the black spot of the dorsal is 
surrounded by a bright blue ring. ISTot taken in the weir, but by hand-net 
inside the bay. This species and F. pisculentus are called " Mummies," 
and are much used for trout and bass bait. 

Anguilla Bostoniensis. 
Syn. Murcena anguilla Schopf. 
Anguilla vulgaris Mitch. 
Murcena rostrata Lesueur. 
Murcena bostoniensis Lesueur. 
Anguilla bostoniensis Ayres. — Storer, Fish. Mass., p. 214, pi. xxxiii., 

fig. 1. 
Common Eel. 

Partly owing to its slender body, which easily passes the meshes of a 
common net, very few specimens were taken. But, as is well known, this 
is one of the commonest of our fishes, and swarms in Waquoit Bay. 

Acipenser sturio. 
Syn. Acipenser sturio Linn. 

Acipenser oxyrhynchus Mitch. — Storer, Fish. Mass., p. 237, pi. xxv., 

fig. 4. 
Sturgeon. 

This sturgeon, formerlj'- thought to be American only, is now known to 
be identical with the common species of Western Europe. 

Acipenser brevirostris. ■• 

Syn. Acipenser brevirostrum Lesueur. 

Acipenser brevirostris Dekay, 345, pi. 58, fig. 191. 
Short-nosed Sturgeon. 

This species escaped the researches of Storer, and is not found in his 
Fishes of Massachusetts. Only one was captured in the weir, and that one, 
when fresh, was quite black. It is more abundant near New York. 



62 INLAND FISHERIES. [Jan. 

Carcharias (Prionodon) obscurus. 

8yn. Squalus obscurus Lksueur. 

Carcharias {Prionodon) obscurus Mull, and Hi':xle. — Storer, Fish. 

Mass., p. 243, pi. xxxvi., fig. 2. 
Dusky Shark. 
Two specimens, June 12. 

Carcharias obscurus M. and H. I only know this species from Waquoit. 
-AG. 

Mustelus IsBvis. 
Syn. Mustelus Icevis Eisso. — Mull. — Hexle. 

Mustelus canis Dekay. — Storer, Fish. Mass., p. 251, pi. xxxviii., fig. 

2, 2 a. 
Harbor Shark. Smooth Hound. 
This European species is very like M. vulgaris of the same country, and 
has been confounded with it. Whether both species exist with us cannot 
yet be determined. The females taken had the embiyo attached by a pla- 
centa, which is the distinguishing mark of M. Icevis. 

Mustelus canis Dekay. This species has never been compared with the 
Mustelus Icevis of Europe, with which it agrees in bearing embryos attached 
to the uterus by a placenta. Our fish is common about Cape Cod, and also 
found in Long Island Sound. — Ag. 

Acanthias vulgaris. 
Syn. Squalus acanthias Lixn. 

Spinax acanthias Cuv. 

Acanthias vulgaris Risso. — Mull, and Henle. 

Acanthias americanus Storer, Fish. Mass., p. 256, pi. xxxviii., fig. 1. 

Dog-fish. 
This is also the European species, but seems not to come there in such 
great numbers. It penetrates to the Adriatic Sea ; is common on the Por- 
tugal coast and in Northern Europe. Dr. Giinter gives it also as coming 
from Chili and from Australia, so that it would appear to be one of the 
imost cosmopolite of its wide-spreading family. On the Massachusetts 
coast, it comes in great schools, and is captured by hook and by net, in vast 
numbers, for the sake of the oil in the liver. 

Acanthias americanus Stor. Our species has never yet been carefully 
compared with the European Acanthias vulgaris. I know it only from Na- 
hant, Cape Cod, Yarmouth and Waquoit, in the months of May and June. 
—AG. 

• Odontaspis littoralis. 

Syn. Squalus littoralis and americanus Mitch. 

Carcharias griseus Ayres. — Storer, Fish. Mass., p. 241, pi. xxxix., 

fig. 1, 1 a. 
Odontaspis taurus {Bafinesque) Mull, and Henle. 
Gray Shark. 
Very conoimon in June. 



1872.] SENATE— No. 3. 53 

Odontaspis littoralis Ag. Squalus Uttoralis Mitch, and Sq. americanus 
Mitch, are one and tlie same species, whicli is identical with Carcharias 
griseus of Ayres. The genus Eugomphodus Gill is entirely superfluous ; it 
is even questionable whether the American Odontaspis differs specifically 
from the European, which is the type of the genus Odontaspis. See " Pois- 
sons Fossiles." I have not yet had an opportunity of comparing the two. 
Our Odontaspis does not seem to extend south of Long Island Sound. It is 
not rare about Cape Cod and at Nahant. — Ag. 

Carcharodon Atwoodi. 
Syn. Carcharias verus? Ag., Poiss. Foss. 

Carcharodon lamia? Bonap. 

Carcharias Atwoodi Storek, p. 246, pi. xxxvi., fig. 4. 

Man-eater. 
Carcharodon verus Ag. Carcharias verus Ag., Poiss. Foss. Carcharodon 
lamia Bon. Carcharodon rondeletii M. and H. Carcharias Atiooodi Stor. 
That Carcharias Atwoodi Stor. is a genuine Carcharodon there is not the 
slightest doubt. I have examined specimens from Cape Cod and Na- 
hant. I can further state with confidence that Carcharias terrce-novce Rich, 
is a young of the same species. Lamna caudata Dekay, is also the same 
fish(?) so that American specimens have already been described under 
three names. Though no direct comparison has thus far been made with 
European specimens, I see no reason for considering them as distinct. I 
know no species of Scoliodon from the Atlantic coasts of the United States. 
— Ag. 

The name Carcharodon Atiooodi is left provisionally. The figure of 
Lamna caudata Dekay, difiers from this species in having the upper lobe of 
the tail much the longer, and in wanting the longitudinal ridge at the base 
of the tail. One specimen only was taken by the weir. 

Myliobates Freminvillei. 

Black Skate. 

Myliohates Freminvillei Lesueur. 3Iyliobates acuta Ayres, and 3L hispinosa 
Str. are one and the same with 3IijUobates Freminvillei Ls., which is the 
oldest name given to this fish. The species is common in the bay of Rio de 
Janeiro. In the male the snout is more pointed than in the female, and 
there is a horn-like projection above the eye, which is wanting in the 
females. — Ag. 

Over twenty were taken, but only during the month of June. The tail- 
spine of a " sting-ray" was found by Wyman and Agassiz in an Indian shell- 
heap near the head of Buzzard's Bay, and may have belonged to this species. 
Ayres' figure, copied in Storer, pl.^xxxix., fig. 4, is very poor. 

Baia Isevis. 

Syn. Baia Icevis Mitch. — Storer, Fish. Mass., p. 26G, pi. xxxix., fig. 2. 
Smooth Ray. 
Baia Icevis Mitch. Baia ocellata Mitch, is the young of his Baia Icevis, 
and Baia chantenay of Lesueur is also the same species. I have never seea 



54 INLAND FISHERIES. [Jan. 

it south of Long Island Sound. In all our species of Baia, the males have a 
more pointed snout than the females, and, besides the claspers, are distin- 
guished from the females by rows of sharp spines upon the upper surface 
of the pectoral fins. — Ag. 

Many taken and of large size. 

Raia diaphanes. 

Syn. Raia diaphanes Mitch. — Storer, Fish. Mass., p. 264, pi. xxxix., fig. 1. 
Baia eglanteria Bosc. MSS. — Shaw. — Dttnieril. 
Clear-nosed Ray. Common Skate. 

Baia diaphanes Mitch. Baia eglanteria and Baia americana Dekay, are 
identical with Mitchill's Baia diaphanes. This species has never yet been 
carefully compared with the European Baia Batis. I have never seen B. 
diaphanes to the south of Long Island Soimd. — Ag. 

Taken very abundantly, especially in April and May. 

Baia erinaceus. 

Syn. Baia erinaceus Mitch. 

Baia erinaceus INIitch. (The author is right in writing erinaceus and not 
erinacea.) I have this species from Nahant, from Saybrook, and from Wa- 
quoit. Baia maroccana is identical with our B. erinaceus, and if truly de- 
rived from the west coast of Africa, would show a wonderful range of this 
skate. — Ag. 

The specific dLflTerence between this and B. diaphanes is chiefly in a lobe 
which rises from the centre of the under lip, which in B. diaphanes makes a 
regular, flattened curve. When a series of both species is examined, this 
feature is seen to vary a good deal, and its specific value is worthy of 
further investigation. 



1872.] 



SENATE— No. 3, 



65 



CONTENTS OF THE STOMACH AND CONDITION OF THE SPAWN. 
Observed from May 1 to June 18. 



Menhaden, 
Tautog, 
Scup,. . 
Cod, . . 



Flat, 



Plaice, , 
Skate, . 
Dog, . , 
Bass, • . 

Shad, . 
Flounders, 

Sturgeon, . 
Squeteague, 



Mackerel, 
Hickory Shad 
Butter Fish 
Hake, . . 
Bellows, . 
Robin, . . 
Harbor Shark, 
Blue-fish, 
Rock Bass, 

SCULPIN, . 

Goose Fish, 
Yellow Sculpin 
Black Skate 



Nothing. 

Crabs; squid (once). 

Small clam ; squid. 

Alewives; menhaden; purula; squid; crabs; smaU 
tautog ; flat fish. 

Small sea clam (ilf. soUdissima) ; worms ; small fish ; 
pyrula ; shrimp; ascidians(?) 

SmaU fish ; shrimp ; sea worm ; sand eel. 

Alewife ; menhaden ; crabs ; squid ; flat flsh. 

Menhaden; squid; alewives; crabs. 

Small " smelt " (atherinaf) ; English herring. 

Small " smelt" (atherina?) (usually empty). 

Crabs; sea perch; squid; alewives. Jime 6 and 13, 
small spawn seen. 

Sea worms. 

Shrimp; small fish; squid; alewives. May 31, June 
14 and 16, large spawn. 

Usually nothing; jelly fish. 

Small fish ; sand eel. 

Shrimp. Large spawn, May 24. 

Squid ; flat fish. 

Shrimp ; sand eel ; squid. 

Squid. Large spawn. May 23. 

Menhaden ; flat fish ; crabs ; sea clam. 

Menhaden ; squid ; alewives. June 13, large spawn. 

Squid. 

Large spawn, May 24 and 25 

Squid. 

Squid. 

Crabs. 



56 



INLAND FISHERIES. 



[Jan, 



REMARKS ON THE TABLES. 

Table I. shows the wiud, A. M. and P. M. ; state of weather ; temperature 
of air, and of the water two feet below the surface ; and the number of 
fish taken daily and for the season. The first seven days were before the 
lease of the weir by the State. The following key will define the common 
names of the fishes by their scientific names. 



Bass, Labrax lineatus. 

Rock Bass, . Ceutropristes atrarius. 

Scup, Pa^rus argyrops. 

King-fish, Umbrina nebulosa. 

Squiteague, Otolithus regalis. 

Yellow Sculpin, Hemitripterus acadianus. 

Sculpin, Acanthocottus virginianus. 

^ , . ( Prionotus palmipes. 

Robm, ^ -o • ^ f. / ' 

i Prionotus Imeatus. 

Goose-fish, Lophius piscatorius. 

Mackerel, Scomber scombrus. 

Bonito, Pelamys sarda. 

Blue-fish, Temnodon saltator. 

Butter-fish, Peprilus triacanthus. 

Lump-fish, Cyclopterus lumpus. 

Perch, Ctenolabrus burgall. 

Tautog, Tautoga onitis. 

Plaice, -^ C Rhombus maculatus. 

Flat-fish, 3 ^ Pseudorhombus melanogaster. 

Turbot, Pseudorhombus oblougus. 

_,, , C Pleuronectes americanus. 

Flounder ^ ^, 

( Pleuronectes ferrugineus. 

Hake, Phycis americana. 

Cod, Gadus americanus. 

Whiting, Merlucius vulgaris. 

Hickory Shad, Alosa matowocca. 

Alewife C Alosa tyrannns. 

i Alosa cyanonoton ? 

Shad, Alosa praestabilis. 

Menhaden, Brevoortia menhaden. 

BiUed Eel, Belone truncata. 

Eel, Anguilla Bostoniensis. 

c,, C Acipenser sturio. 

Sturgeon, < » . 

(. Acipenser brevirostris. 

( Carcharias obscurus. 

Shark, < Carcharodon Atwoodi. 

( Odontaspis littoralis. 
Dog-fish, Acanthias vulgaris. 



1872.] SENATE— No. 3. 57 

Harbor Shark, Mnstelus IsBvis, 

( Raia la3vis. 
Skate, -S Raia diaphanes. 

( Raia erinaceus. 

Black Skate, Mylobatis Frerainvillei. 

Squid, Ommastrephes sagitatus. 

Several criticisms are called for on the table. In the first place, the 
keeper, being an ordinary fisherman, of course did not nicely discriminate 
the species, and mixed several together under the name of plaice, flat-fish, 
&c. He should have been furnished with a can of alcohol, wherein he 
could keep samples of doubtful fishes, for Identification. Then it was hard 
to teach the weir men the necessity of counting the ofial fishes, because 
they had been used to pitch them all overboard. However, towards the 
end of the season, the account was kept with a great deal of regularity. If 
the experiment were continued another year, all offal fishes should be 
thrown in the scow and brought on shore, where they could be counted and 
sorted at leisure. Then some hundreds of alewives should be marked, by 
clipping their fins, and turned loose to see if they were afterwards found in 
the neighboring brooks. From time to time, one side of the entrance to the 
heart should be closed, first the west and then the east side, to determine if 
the fish always come from the west, as is asserted. In looking at the catch 
of each day, the reader will bear in mind that the weir was never hauled on 
Sunday, nor on very stormy days ; and, furthermore, that the menhaden were 
sometimes not counted for several days together, because no vessels came 
along to buy them. When, therefore, he sees, on May 25th, 780, and on May 
31st, 40,300, he is not to suppose that no menhaden entered the weir for five 
days, and that then 40,300 were suddenly taken. 

In Table II. the figures for the first six years are taken from the weir 
men's books, and are believed to be generally correct, although not minutely 
accurate. It gives a good general idea of how the army of alewives first 
comes on the coast ; then the menhaden, slightly overlapping them ; while 
the shad and bass, in less force, make, as it were, connecting skirmishers, 
with their grand guards, between these armies. 

Table III. gives the march of two species of predatory fish, in contrast 
to the food fishes of Table II. The footings show that they are very irreg- 
ular in their numbers and movements. 

Table IV. shows the four food fishes and two predatory fishes in their 
gross numbers, as taken early and late in the season. 

Table V. gives the first appearance each season, for thirteen years, of 
four species of fish. The blue-fish, although irregular in numbers and 
movements, are more regular than any in the date of theii* appearance. 

8 



68 INLAND FISHERIES. [Jan. 



EXPLANATION OF PLATES. 

Plate I. Sketch of Narraganset, Buzzard's and Massachusetts Bays, and 
of the south side of Cape Cod, to show the number and position of 
the weirs and traps. These vary from year to year in situation and 
number, and this sketch does not give them except with general ac- 
curacy. They are denoted by little lines with a black dot, like short 
pins. In order to make them clear, their length is exaggerated, and, 
on an average, they are represented perhaps from twice to three 
times as long as they really are. 

Plate II. Fig. 1. Waquoit Bay and its weir; from the United States 
Coast Survey. 

Fig. 2. A trap ; a, the apron which is hauled up to close the 
mouth. 

Fig. 3. Part of the bowl of the weir next the entrance ; a, 
head-line ; c, post ; d, sliding pole to haul up the net-bottom 
and close the entrance ; e, movable ring ; /, stationary ring. 

Fig. 4. A section of the leader, showing the chain at the bot- 
tom. 

Fig. 5. A piece of the bowl ; 6, foot-line to haul down the bot- 
tom of the bowl. 

Fig. 6. The weir in plan on a scale of 200 feet to an inch ; g, 
the leader ; h, the heart ; i, the bowl ; k, the pocket, to keep 
the fish alive when emptied out of the bowl. 



v^ 













Vi^ ^^ 




^ I 



Table I.— General Beturn of the Waquoit Weir for 1871. 





WlSD. 




Tempeea- 














■i 














1 


=^= 


=^= 


= 




r? 




^= 




= 


== 








= 


= 









= 


= 


= 






Weatheb. 




TUEE, 


1 


1 


f 


! 


1 


i 
1 




1 


i 

1 


i 1 


ii 


1 


i 
1 


1 


i 


P 


1 
1 


1 


1 1 


1 

i 


1 

1 






s 


i 


i 


1 


1 


1 
1 


1 


s 
1 

1 


i 






A.M. 


P.M. 


. 


i 


1 i 


March 2i, 
April 3, 










- 


: 


: : 




: 


: 


- 


-_ 


- 


- 


: 


: 


- 


; 


; 




- 


- 


: 


- 


- 


: 




- 


: 




- 


1,840 
357 


- 




- 


- 


- 


- 


- 


- 




















- 


- 


- - 




- 


- 


- 


- 






- 


- 


- 


1 


- 


- 




- 


- 


- 


- 


- 


- 


- 


- 


- 


_ 


6,400 


- 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 
















- 


- 


- 




- 


- 


- 


- 


- 




- 


- 


- 


- 


- 


- 




- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


5,850 


1 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 
















- 


- 






- 


- 


- 


- 


- 




- 


- 


- 


j 


- 


- 




- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


2,340 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


. _ 








14, 










- 


- 


- 




- 


- 


- 


- 


- 




- 


- 


- 


( - 


- 


- 




- 


- 


- 


- 


- 


- 


- 


_ 


_ 


_ 


13,250 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 








































































7,000 
4,056 


23 
























18, 










J^.W. 


s.w. 


Fine. 




54 


50 


! 1 


- 


- 




- 


_ 


157 


- 


_ 


1 - 


> 


_ 


_ 


_ 


6 


314 


_ 


1 


_ 


_ 


_ 


11 






















~ 


19, 










E. 


S. E 


Cloud. 




51 


50 


1 - 


- 


~ 




- 


1 


- 


- 


- 


- 


} - 


- 


- 


- 


9 


215 


_ 


_ 


_ 


_ 


_ 


4,100 


5 




_ 


_ 


_ 




_ 








60 
200 
110 

20 




20, 










S. K 


s. w 


Breeze. Rain. • 




51 


49 


68 


- 




- 


- 


5 


550 


_ 


_ 


_ 




_ 


_ 


_ 


22 


500 


_ 


_ 


1 


_ 


_ 


2,600 


16 






_ 


_ 














21, 










S. E 


S. E. 


Clear. Fog. 




59 


52 


2 


- 


- 


- 


- 


_ 


- 


- 


- 


- 




1 


- 


- 


5 


230 


_ 


_ 


_ 




_ 


2,300 


9. 




fiOOO 


_ 


_ 


_ 


_ 


_ 






6 


22, 












s.w. 


Cloudy. 




69 


51 


1 - 


- 


- 


- 


- 


_ 


20 


_ 




1 - 




- 


1 


_ 


9 


568 


_ 


_ 


1 




_ 




1 






_ 


_ 


1 


_ 








23, 










W. 


w. 


Cloud. Breeze. 




56 


50 


1 - 


. 


- 


_ 


_ 


_ 




_ 


_ 






_ 




_ 






_ 
































24, 










w. 


N W. 


Clear. Breeze. 




55 


51 


_ 


.. 


_ 


_ 


_ 


_ 


2 


_ 


_ 


_ 




_ 


_ 


_ 


I 




_ 














]j3,300 




















25, 










S. E. S. 


Clear. Cloud 




59 


51 


! 1 


_ 


1 


_ 


_ 


_ 


4 


_ 


_ 


1 - 




_ 


_ 


_ 


6 


125 


_ 


_ 


_ 






30 
















30 




197 
5 


6 


26, 










N.W. 


N. E. 


Clear. 




68 


52 


i _ 


_ 


_ 


- 


_ 


_ 


9. 


_ 


_ 


1 - 




_ 


_ 


_ 




1 
































27, 










E. 


E 


Cloud. Breeze. 




50 


52 


1 


_ 


- 


_ 


_ 


_ 


3 


I 


1 


2 - 




_ 


_ 


_ 


11 


26 


_ 


_ 


1 


_ 


_ 


80 


_ 




_ 


_ 


_ 






212 






28, 










E. 


S. E. 


Breeze Rain. 




50 


51 


2 


- 


- 


- 


- 


3 


_ 


1 


_ 






_ 


_ 


_ 


7 


30 


1 


3 




_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 






20 




29, 










N.W. 


S. E. 


Cloud. 




54 


51 


1 


- 


3 


- 


_ 


7 


42 


5 


_ 


_ 




_ 


_ 


_ 


27 


64 






2 


_ 


_ 


_ 


_ 


' 


_ 


_ 


_ 






476 






30, 










8,\V. 


s w 


Cloud. Clear. 




57 


53 


- 


- 


- 


- 


- 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 




_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 










May 1, 










S. E. 


E. 


Cloud. Clear. 




56 


52 


- 


_ 


6 


- 


_ 


_ 


_ 


_ 


_, 


_ 




_ 


_ 


_ 


5 


103 


_ 


_ 


2 


_ 


_ 


_ 


_ 


17,420 


_ 


_ 


_ 


_ 


_ 


381 




200 


400 


2, 












S E. 


Clear. 




58 


54 


- 


- 


- 


- 


- 


_ 


_ 


_ 


_ 


_ 




_ 


1 


_ 


3 


35 


_ 


_ 


2 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


201 




179 


2,500 
6,000 


3, 










S. E. 


S. E 


Cloud. 




64 


54 


1 


- 


- 


_ 


_ 


_ 


2 


_ 


_ 


_ 




_ 




_ 


_ 


75 


1 


_ 




_ 


_ 


_ 


1 


_ 


_ 


_ 


_ 


_ 


_ 


716 




220 


4, 










M. K. 


S.t.oN.E. 


Wind. Rain. 




■44 


52 


- 


- 


- 


- 


- 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 








5, 










N. 


N. E. 


Thick. Rain. 




56 


52 


2 


- 


- 


- 


_ 


_ 


_ 


20 


_ 


_ _ 




_ 


_ 


_ 


_ 


49 


1 


_ 


2 


_ 


_ 


_ 


_ 


35,920 


_ 


_ 


1 


_ 


_ 


162 




170 


200 


6, 










JSJ. E. 


N. E 


Cloud. Breeze. 




48 


52 


- 


- 


- 


- 


- 


_ 


_ 


_ 


_ 


■ _ _ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 




_ 


_ 










7, 










W. 


AV 


Cloud. Breeze. 




54 


52 


- 


_ 


- 


- 


_ 


_ 


_ 


_ 


_ 


_ _ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 














8, 










W. 


W. 


Cloud. Gale. 




56 


52 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


lko20 




















9, 










S.W. 


S W. 


Cloud. Breeze. 




55 


52 


- 


_ 


2 


- 


1 


_ 


_ 


1 


_ 


_ 




1 


_ 


_ 


_ 


42 


_ 


_ 


1 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 




988 




1505 




10, 










s. vv. 


N. E 


Cloud. Rain. 




59 


52 


- 


- 


27 


- 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


2 


_ 


_ 


1 


_ 


_ 


_ 


3 


11,800 


_ 


_ 


_ 


_ 


_ 


307 


_ 


158 


400 


11, 










N.W. 


s. w. 


•Clear, Cloud. 




58 


53 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 




_ 


_ 




_ 


_ 


_ 


_ 


" 


,945 


_ 


_ 


_ 


_ 












12, 










S.W 


s.w 


Clear. Cloud. Breez 


e. 


60 


54 


- 


- 


- 


- 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 






_ 


_ 


_ 


_ 


_ 


_ 


_ 






18, 










N.W. 


N.W. 


Cloud. Breeze. 




56 


53 


- 


_ 


59 


_ 


_ 


_ 


_ 


_ 


_ 


4 - 




4 


_ 


_ 


_ 


5 


_ 


_ 


_ 


1 


•4 


_ 


6 


■ 


,200 


_ 


_ 


_ 


_ 


_ 


1,096 




151 


600 


14, 










W 


W. 


Cloud. Breeze. 




56 


53 


- 


- 


- 


- 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


.. 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 




_ 






15, 










s w. 


S.W 


Cloud. Clear. Breez 


s. 


59 


54 


- 


_ 


_ 


1 


_ 


_ 


_ 


30 


_ 


8 - 




5 


_ 


_ 


3 


15 


6 


1 


_ 


_ 


10 


_ 


17 




300 


_ 


_ 


1 


_ 


_ 


_ 


_ 


39 


2,000 


16, 










w. 


s 


Clear. 




66 


54 


6 


- 


- 


- 


J 


_ 


4 


2 


_ 


5 - 




2 


_ 


_ 


12 


4 


_ 


_ 


_ 


_ 


6 


_ 


_ 




900 


_ 


_ 




_ 


_ 


_ 


_ 


22 


3,000 


17, 










w. 


s w 


Cloud. i 


66 


55 


- 


_ 


_ 


_ 




_ 






_ 








_ 


_ 




20 


_ 


_ 


_ 


_ 




_ 


_ 






_ 


_ 


_ 


_ 


_ 


_ 








18, 










N 


S E. 


Clear. Breeze. 


55 


56 


- 


_ 


- 


- 


- 


_ 


_ 


_ 


1 


58 - 




_ 


_ 


_ 


6 


4 


_ 


_ 


_ 


_ 


_ 


_ 


24 




280 


_ 


_ 


1 


3 


_ 


_ 


_ 


33 


6,000 


19, 










N. E, 


S. E 


Clear. ■ 


63 


58 


- 


- 


- 


- 


- 


_ 


_ 


- 


- 


23 - 




50 


_ 


5 


3 


15 


_ 


- 


- 


- 


12 


- 


5 




J40 


_ 


- 


_ 


_ 


_ 


_ 


_ 


20 


4,000 


20, 










S.W. 


S.W. 


Clear I 


V2 


58 


- 


_ 


- 


- 


2 


_ 


_ 


6 


_ 


82 - 




22 


_ 


_ 


_ 


11 


1 


3 


_ 


_ 




_ 


4 




JOO 


_ 


_ 


_ 


_ 


_ 


6 


_ 


10 


5,000 


21, 










s w. 


s. w. 


Clear. Breeze. ■' 


68 


60 


- 


- 


- 


- 


- 


_ 


_ 


- 


_ 


_ 




50 


_ 


_ 


_ 


16 


_ 


- 


- 


- 


_ 


- 


- 




- 


- 


- 


_ 


_ 


_ 


_ 


_ 






22, 










s w. 


s w. 


Cloud. Fog 


73 


61 


1 


_ 


- 


- 


1 


_ 


_ 


50 


3 


85 - 




50 


_ 


_ 


_ 




_ 


1 


_ 


_ 


_ 


_ 


4 




)00 


_ 


_ 


_ 


_ 


_ 


50 


_ 


40 


1,500 


23, 










w. 


N.W 


Smoky 




75 


62 


- 


- 


- 


- 


- 


_ 


_ 


7 


1 


6 - 




4 


_ 


_ 


_ 


16 


_ 


- 


- 


_ 


2 


- 


_ 


2<000 


- 


_ 


_ 


_ 


_ 


25 


_ 


16 


2,000 


24, 










N W. 


N.W. 


Smoky. Breeze. 




69 


57 


- 


4 


_ 


- 


_ 


_ 


_ 


10 




_ 




6 


_ 


_ 


_ 


7 


2 


_ 


_ 


_ 




_ 


_ 




205 


_ 


_ 


_ 


_ 


3 


3 


_ 


7 




25, 










s W 


S. W. 


Clear. Smoky. Bree, 


e. 


65 


57 


- 


- 


2 


1 


3 


_ 


7 


4 


_ 


_ 




4 


_ 


_ 


3 


7 


4 


_ 


_ 


_ 


_ 


- 


- 




780 


2 


1 


1 


_ 


_ 


1 




9 


2,000 


26, 










s w. 


S W 


Cloud Rain 1 


65 


58 


- 


_ 


_ 


- 


_ 


_ 






_ 


_ 






_ 


_ 




_ 




_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 










27, 










N 


N. E. 


Cloud Breeze. 1 


62 


60 


_ 


_ 




_ 


3 


2 


_ 


3 


3 


_ 


n 


2 




_ 


2 


7 


9 


_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


8 


2 




34 


_ 


28, 










S. E. 


S E. 


Clear Breeze. 




65 


62 


_ 


_ 




_ 


_ 




_ 












_ 


_ 




_ 




_ 


_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


- 


_ 


29, 










S W. 


S W. 


Clear. Breeze. 




67 


62 


- 


- 




- 


5 


2 


_ 


_ 


_ 


: t 


63 


_ 


_ 


_ 


_ 


_ 


17 


_ 


_ 


_ 


1 


- 


- 


1 - 


- 


- 


1 


- 


4 


_ 


- 


31 


- 


30, 










S W. 


S.W. 


Thick. Breese. 




72 


62 


_ 


_ 




_ 






_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 




_ 


_ 


_ 




- 


- 


] - 


_ 


_ 


_ 


- 


_ 


- 


- 


_ 


- 


31, 










S W. 


N. E. 


Cloud. Showers 




78 


62 


_ 


_ 


_ 


_ 


2 


_ 


_ 


_ 


_ 


: t 


2 


1 


_ 


_ 


1 


_ 


6 


_ 


_ 


_ 


_ 


- 


1 


4i300 


_ 


_ 


_ 


_ 


7 


_ 


_ 


22 




June 1, 










iN K. 


S. E 


Cloud. 




65 


62 


- 


_ 




- 


_ 


_ 


_ 


_ 


_ 


11 




_ 


_ 


1 


_ 


16 


_ 


_ 


_ 




- 


- 


1^260 


- 


_ 


- 


- 


4 


- 


- 


3 














S.W. 


S. W. 


Fog Breeze. 




66 


63 


_ 


_ 




_ 


2 


_ 


_ 


_ 


_ 


- ; 


83 


_ 


_ 


_ 




_ 


3 


_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


4 


_ 


_ 


5 




3, 










S.W. 


S. W. 


Fog Breeze. 




73 


63 


- 


_ 




- 


_ 


_ 


_ 


_ 


_ 


- i 


66 


_ 


_ 


_ 


_ 


1 


4 


_ 


_ 


_ 


_ 


- 


- 


- 


- 


- 


- 


- 


3 


- 


- 


3 




4, 










s w. 


N. 


Cloud. Thunder. 




82 


63 


- 


_ 




- 


_ 


_ 


_ 


_ 


- 




- 


_ 


_ 


_ 


_ 


_ 


_ 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


5, 










N. 


E. 


Clear. Breeze. 




68 


6.S 


_ 


_ 




_ 


_ 


_ 


_ 


1 


_ 


_ 


76 


_ 


_ 


_ 


2 


_ 


12 


_ 


_ 


_ 


_ 


- 


- 


- 


- 


- 


- 


- 


12 


- 


1 


6 


- 


6, 










S. 


S 


Cloud 




73 




_ 


_ 




_ 


_ 








_ 


_ 


10 


_ 


_ 


_ 


1 


_ 


6 


_ 




_ 


1 


- 


- 


_ 


_ 


_ 


_ 


_ 


8 


- 


1 


5 


- 


7, 










S. 


S W. 


Cloud. Rain. Breeze 




76 


60 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 


_ 




_ 




_ 


_ 


_ 


_ 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


8, 










S.W. 


s.w. 






68 


66 


- 


_ 




- 


_ 


_ 


_ 


1 


_ 


- 


1 


_ 


_ 


_ 


_ 


20 


_ 


_ 


- 


_ 


- 


- 


- 


- 


- 


- 


- 


- 


1 




- 




- 


9, 










w. 


s.w. 


Haly. Clear. 




80 


66 


_ 


_ 




_ 


1 


_ 


_ 




_ 


_ 


(27 


_ 


_ 


_ 


_ 




4 


_ 


_ 


_ 




- 


- 




- 


- 


- 


6 


6 


- 


- 


30 


- 


10, 










S. W- 


s.w. 


Clear, Breeze. 




75 


67 


_ 


_ 


48 


_ 


8 


_ 


_ 


_ 


_ 


- 1 


!25 


_ 


_ 


_ 


2 


I 


27 


_ 


_ 


_ 


2 


- 


- 


r,540 


- 


_ 


_ 


5 


13 


- 






- 


11, 










s w. 


s.w. 






81 


67 


_ 


_ 




_ 




_ 


_ 


_ 


_ 


_ 


_ 


2 


_ 


_ 


_ 


40 


_ 


_ 


_ 


_ 


- 


- 


- 


- 


- 


- 


- 


10 


- 


- 


- 




- 


12, 










s 


N.W. 


Fog. Breeze 




64 


67 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


_ _ 


_ 




_ 


_ 


_ 


10 


_ 


_ 


_ 


_ 


_ 


- 


- 


- 


- 


- 


- 


24 


- 


- 


- 


- 


- 


13, 










s w. 


S. W. 


Clear. Cloud. Breeze 


, 


70 


65 


_ 


_ 




_ 


f.^. 


1 


_ 


_ 


_ 


_ _ 


127 


- 


_ 


_ 


_ 


_ 


13 


_ 


- 


- 


- 


- 


- 


- 


- 


- 


- 


- 


22 


- 






- 


14, 










s w. 


s w. 


Cloud. Breeze. 




70 


66 


_ 


_ 




_ 


9. 




_ 


_ 


_ 


_ 


,68 




_ 


_ 


1 


_ 




_ 


_ 


_ 


_ 


- 


- 


2f,300 


- 


- 


1 


- 




- 




2 


- 


15, 










S.W. 


s. 


Cloud. Raiu. 




60 


64 


_ 


_ 




_ 








_ 


_ 


_ 




_ 


_ 


_ 




_ 


_ 


_ 


_ 


_ 


_ 


- 


- 




- 


- 


_ 


- 


- 


- 


- 


- 


- 


- 


16, 










s w. 


s w. 


Cloud. 




73 


65 


_ 


_ 




_ 


3 


_ 


_ 


_ 


_ 


_ 


81 




_ 


_ 


_ 


_ 


2 


_ 


_ 


_ 


- 


- 


- 1 


93 


- 


- 


2 


- 


69 


- 


2 




- 


17, 










N. 


s.w. 


Clear. Cloud. 




75 


64 


"se" 


4 


151 


2 


56 


21 


793 


142 


1 
10 


227 2 


31 
•391 


- 


2 


5 


148 


- 


1 
136 


- 


- 


- 


- 


- 


- 


19 
27V222~ 


2 1 


T 


48 


242 


- 




~ 


~ 


Totals 


- 


- 


• ~ " ''■ 


204 


2,578 


9 


13 


1 


38 


50,153 


124 


4,790 


22 


2,923 


.35,612 





























































































Table II. — Return of Aleioives, Shad, Menhaden and Bass, at the Waquoit Weir, for Seven Years. 







1 A.ew.v.3. 


Sn.o. 


. - .„. ; -- - 


Bass. 




1805. 


ISOO. 


18«W. 


1 .«8. 


I860. l»10. ISTl. 


1805. 1800. 1807. 


1808. il80O. 


IBTO. 


1811. 


1805. 1900. 


isor. 


1908. 


180l»l 1810. 


isri. 


1805. 


1800. 


18OT. 


1809. 


I860. 


1810. 


1811. 


March 17, . 
24, . 
28,. 

30, . 

31, . 
April 1, . 

2,. 

3, . 

4, • 

5, . 

6, . 

7, . 

8, . 

9, . 

10, . 

11, . 

12, . 
13,. 

14, . 

15, . 

16, . 

17, . 

18, . 

19, . 

20, . 

22; ; 

23, . 

24, . 
25,. 

26, . 

27, . 

28, . 

29, . 

30, . 
May 1, . 

2, . 

3, . 

4, . 

5, . 

s! '. 

9, . 

10, . 

11, . 

12, . 

13, . 

14, . 

15, . 

16, . 




21-,000 
24,096 

21,093 

12,032 

13,050 

850 

15,050 

335 

31,000 

43,045 

2,500 
30,090 
38,050 

1,270 
23,000 
14,075 
33,074 

17,020 

19,030 
19,000 
17,000 
13,000 

I 

: 

408,660 


506 

2,199 
3,913 

4,000 
5,691 
2,348 
5,090 
4,078 

1,994 
4,330 
2,530 
5,320 
2,288 

6,200 
2,130 
4,000 
4,000 
3,132 
4,500 

3,000 

- 


765 
428 

143 

889 

919 

1,220 

2,500 

3,000 

1,560 
4,240 
2.380, 
3,700! 
6,050. 
5,400' 

4,560 

4,200 
2,940 

2,020 

6,000 
2,900 
3,1)00 


900 
362 
420 
654 
540 
62 

150 

624 
2,900 

1,225 
2,350 
6,000 
4,000 
4,430 
800 

4,000 
3,400 
2,700 


2,354 

1,356 

734 

608 

2 
50 
50 
400 
150 

1,000 
1,500 
2,000 
5,000 
6,000 
4,000 

3,300 
2,100 

3,100 
800 

- 


! 

! I 

i 313 
417 

1 500 
588 

! 663 
47 
1,165 
3,259 
2,415 
7,000 

8,050 
4,100 
2,700 
5,300 
7,500 

4,500 
4,200 
2,950 

8,025 
4,860 
3,140 
3.780 


1,840 
357 

! ; 

j 6,400 

t 

! : 

1 5,850 
1 2,340 

13,250 

7,000 
4,056 
4,100 
2,600 
2,300 

30 
30 


1 

2 
2 

1 
12 
3 

17 

28 
12 

15 
4 

25 
85 

20 

noo 

60 
30 
6 


1 
1 

2 
6 
21 

1 
19 

28 
6 

30 
43 
35 
40 

27 

33 

8 


1 
1 

2 
5 
10 

22 

7 
4 

8 

36 
24 
33 
5 

28 

87 
54 

18 
20 


1 : 
! - 

13 

w 

30 
13 

8 !■ 

- i 

.51 j 
31 
40 
23 
19 
50 

440 

200 
90 
130 

30 
76 
1.50 

75 
100 
75 


i : 
f : 

4 

2 

1 

15 

37 
32 

76 

121 

108 
30 

• 20 

_ 


2 

14 
4 

1 

14 

15 
12 
14 

30 
51 
50 
60 
50 

40 
40 
10 
30 
50 


1 

23 
11 
5 
16 
2 
1 

1 

3 

6 
17 


- 

400 

4,000 
4,000 

6,500 
17,000 
10,500 

28,080 

29,640 

1,000 
7,800 

66,380 
15,340 


_ 
- 

1,800 

7,100 
4,600 
2,200 
2,000 
5,600 
4,700 

1.5,430 
20,000 

35,400 
16,900 

98,000 


1,880 
3,000 
3,000 

3,000 
2,000 

6,500 
3,800 

16,000 

4,500 

19,760 
19,240 


: 

- 

2,300 
1,100 
2,490 

5,250 

6,600 
2,516 
2,800 

4,250 
3,200 
5,600 
4,100 
5,500 
fi,000 


- 

i: 
i: 
1- 
- 

2,8(0 
5^0 

2-,3ao 

.5;i! 

3,010 
7,6(0 
2,3(0 

16.6(i0 
5,0(0 
17,0( 


- 

4,600 
5,300 

8,500 
7,400 
7,500 
920 
5,360 

8,200 
24,150 
18,900 
16,000 
45,760 


~- 

6,000 
13,300 

17,420 

35,920 

10,020 
16,800 
14,945 

14,200 

7,300 
900 

1,280 
1,040 
7,600 

6,000 

26,000 

2,205 

780 

40,300 
13,260 


1 
1 

1 

2 

30 

20 

18 
8 

20 
15 

_ 
10 


3 

4 

- 
- 

: 
: 


- 

: 

- 

- 
4 

20 

02 

2i 
18 


I 
- 

- 
1 

14 
20 

28 


5 
20 


: 

5 
20 

26 


1 

2 

1 
1 

f 

- 
2 

6 > 

1 

: 

86 


18, . . 

19, . 

20, . 

21, . 

22, . 

23, . 

24, . 

25, . 

26, . 

27, . 
28,. . 

29, . 

30, . 

31, . 
June 1, . 

2, . 


\ 


"i 


: 


_ 


-_ 


: 


~- 
- 


_ 


: 


175 
60 
90 


I! : 


24 
5 
4 

4 

1 


- ! 27,040 

19,760 

- 11,700 

700 260 

- i - 

- 65,780 


3,880 

39,700 
12,220 


3,120 
2,080 
7,500 

10,400 
16,900 

28,860 
4,160 


33,0-]o 

11,7(1)0 
28,8|0 


^57,980 
5,720 

1,200 

10,000 

32,240 
21,580 

46,2.S0 ■ 
47,840 
21,840 
10,660 


Total, . 


71, 1249 


58,814 


.3.5,517 


35,504 


75,472 


50,153 


661 


302 


403 


2,055 


446 585 


124 


211,100 318,510 


203,740 


124,726 


145,7110 


407,930 


235,270 


126 


7 


129 


65 


25 


51 






























































' 



1872.] 



SENATE— No. 3. 



59 






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1 1 1 1 1 1 1 i-l -1 1 1 1 1 1 1 1 1 1 1 1 1 1 


i 

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1 t-H 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 


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1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 i 1 


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Tfi r-l lO O kO 
















oT w" lo" co' ^-^ ocT oT c^ ^" of ^''^jTirTiD' t^aTcTcT -—I ofco'Tjr 

i-(i-lr-lr-(rHr-(01(M(>JC^CMC^(MC-I<M0aC0 



60 



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<X) 

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H 

















1 1 1 1 1 1 1 1 i 1 1 -^ 


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1 1 


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ft 


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1 1 


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o 


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»-( 


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1 1 1 1 1 1 1 1 1 1 1 1 


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(M CI Ol .-1 


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1 1 1 1 1 1 1 1 1 (M 1 1 


1 1 


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1 1 


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o o 




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rf CO 




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1 1 1 1 1 1 1 1 1 t i 1 


1 1 


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l4 


1 1 1 1 1 1 1 1 1 1 O 1 


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o 


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CO 


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INLAND FISOERIES. [Jan. 

1-1 
I I 

I 'O 
<M 

o o 

o 

01 1— ( 

I I 

I I 

(M Tt( 

CO CD 

I— t 

Oil I lOOlr^l iCOl I 1 I I |CD|O»0C0t-l<NI 

CO CO O OJ lO (M 

1-1 Oi CO O^ 

I I I I I I I I I 1 I I I I O I I I I I I I I 

o 

lO 
IllllillllOIIOOOIIIIIII 

o o o o 

I I I 

O I o 

o o 

t^ CO 
illllllllllillllOIOOIII 

o o o 

CO C^ (M 
I I I I I I I O I I i I I I I I I I I I I I I 

o 

lOcoV-'cOcrO^-^C.-'cOHro^^ 



1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 


1 O 1 i 1 1 1 


1 1 1 1 1 1 o 


1 o o 


tool 1 1 


o 


o 


o o 


o o 


r-i 


t^ 


CO o 

of 


(N t-l 



1872.] 



SENATE— No. 3, 



61 



1 CO 1 ei 

CD 


2 


1 1 1 1 


1 


COO 
»— 1 rH 


o 

■TfH 
00 


1-i 


o 


CO "^ 1 1 

TJ^ CO 




i 1 CO 1 


t^ 


1 Tt^ CD O 

a> '^ CI 

i-l CM 


CD 
rH 




1 1 1 1 


o 


1 1 i i 




1 1 1 1 


rH 
O 
O 
CO 


1 1 1 1 


1 


1 1 1 1 


•-H 
O 

CO 


1 1 1 1 




1 1 1 1 


T-H 


CO oTcrTr^ 

<N (M coco 


3 
e5 



62 



INLAND FISHERIES. 



[Jan, 









^ 






pq 






60 

i 

to 



I 



(X) 

H 


CO O 
t^ CO 


CO 


© 

* 


lO CM 


(M 


CD 

H 


CD Oi 


O 

■^ 
CO 


QC 
H 


)r^ O 

CO 00 

CM 


f— ( 

CO 


QD 

H 


2§ 

05 OS 

•* rH 


CO 


GO 

H 


05 O 

co'tC 


05 

I— T 


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H 


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(M GO 
CO 


o 

CO 
CO 




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^^ 

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CM 

1—1 


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CD CM 1 


2 
O 


t- OS 

CO 1 


CO 


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CD^rJi 

1—1 


o 

CN 


CO o . 

CD '^ 1 

CO 




CO a 
co^ , 


CO 


CD UO 


CD 


April 8 to 20, 

April 20 to May 15, . 

May 15 to 31, 


H 



22 

O CM 

cd'oT 

CO 05 
1—1 


O 

CO 
(M 


8^ 

CM^icT 
1-1 CM 


1 


CO TO 

CD O 

cD^aT 

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1872.] 



SENATE— No. 3. 



63 



osoi> 

to rl 


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00 


1 ^ 1 


to 


1 U5 1 
CM 


s 


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to 

CO 


1=2 

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05 


1 t- 1 


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lO ^ O 
CO 00 1-1 


CD 

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April 14 to 20, 

April 21 to May 15, . . . . 
May 15, 


"13 

1 



CO 

2 

I-H 
1^ 



<N 00 

oo o 
CO •*< 
of of 


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CI o 

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lO 


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8 

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o 

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co" 


CO o 

1 


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1 


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^1 


CO 


to 


'^ 

^ 



64 



INLAND FISHERIES, 



[Jan. 



Table Y. 

Days of first appearance of Alewives^ /Sciip, Blue-Fish and 3Ien^ 

haden^ at Waquoit Weir^for Thirteen Years. 



Alewives. 



Scup. 



Blue-Fish. Menhaden 



1859, 
3860, 
1861, 
1862, 
1863, 
1864, 
1865, 
1866, 
1867, 
1868, 
1869, 
1870, 
1871, 



April 7, 
3, 

1, 

Mar. 30, 

29, 

28, 

29, 

April 2, 

Mar. 28, 

30, 

31, 

28, 

24, 



May 5, 
2, 

April 27, 

May 10, 
8, 
6, 
1, 
8, 
4, 
10, 
7, 
2, 

April 25, 



May 16, 
15, 
17, 
13, 
15, 

16, 
15, 
14, 
19, 
17, 
16, 
24, 



May 6* 

4. 

1. 

6. 

2. 

5. 

1. 

7. 

3. 
15. 
10. 

8. 
April 21. 



* Dates when first plenty. 



1872.] SENATE— No. 3. 66 



[C] 

Opinion of the Supeeme Judicial Court for the Common- 
wealth IN THE Case of the Commissioners on Inland 
Fisheries v. Holtoke Water Power Company. 

[To be printed in Volume 104 of the Massachusetts Keports.] 

The provision of the Eev. Sts. c. 44, ^ 23, and Gen. Sts. c. 08, § 41, declaring that acts 
of incorporation shall be subject to amendment, alteration or repeal at the pleasure 
of the legislature, reserves to the legislature the authority to make any alteration or 
amendment of a charter granted subject to it, which will not defeat or substantially 
impair the object of the grant or any rights vested under it, and which the legisla- 
ture may deem necessary to secure either that object or other public or private rights 

After a manufacturing corporation, chartered with authority to construct and maintain a 
dam across a river, paying damages to the owners of fishing rights above, and whose 
charter does not expressly exempt it from maintaining the dam without a fishway 
and is subject under the Rev. Sts. c. 44, § 23, and Gen. Sts. c. 68, § 41, to amend- 
ment, alteration or repeal at the pleasure of the legislature, has paid such damages, 
and constructed the dam without a tishway, so as to destroy the fishing rights above, 
and to impaiitfishing rights below, for the injury to which last no compensation has 
ever been made or provided, that corporation, or any otber which purchases its dam 
under the authority of a subsequent statute, may be constitutionally required by the 
legislature to construct a fishway in the dam to the satisfaction of commissioners ap- 
pointed for the purpose. 

Gray, J.* The material facts of this case, as appearing by the 
report of Mr. Justice Colt, before whom the hearing was had, are 
few and simple. 

The defendants, under the authority conferred upon them by 
their charter, St. 1859, c. 6, are the owners by purchase of a dam 
across the Connecticut River, and the locks and canals connected 
therewith, at Holyoke in this Commonwealth, erected by the Had- 
ley Falls Company in accordance with its charter, St. 1848, c. 222, 
and kept up ever since, for the purpose of creating and maintaining 
a water power for manufacturing and mechanical purposes. 

The charter of the Hadley Falls Company provided that it should 
pay such damages to the owners of fishing rights then existing 
above the dam which it was thereby empowered to construct, as 
might be assessed by the county commissioners, and that either 
party might apply to them " to ascertain and determine the dam- 
ages to said fishing rights," and might appeal from their assessment 

* The chief justice did not sit in this case, and it was argued before all the other 
judges in June, 1870. 



66 INLAND FISHERIES. [Jan. 

to a jury, as in the cases of laying out highways. St. 1848, c. 222, 
§§ 4, 5. And such damages were duly assessed and paid. 

It was admitted that, before this dam was built, shad were accus- 
tomed to pass up the Connecticut River beyond, as far as Turner's 
Falls^and were of value to citizens of the Commonwealth, being 
private owners of riparian fishing rights, for sale as food, and were 
a source of income to such riparian proprietors upon the river, both 
above and below the dam ; and that the dam prevented the passage 
of fish up the river, and destroyed the fishing rights above. 

It was found at the hearing, that, since the building of the dam, 
the number of shad in the river below had gradually decreased from 
various causes ; and that a small, but appreciable, portion of such 
decrease was due to the maintenance of the dam, which prevented 
the fish from passing up to their former spawning grounds above, 
and to some extent caused them not to return to the river after 
their annual passage to the sea. But it did not appear that any 
owners of fishing rights below the dam had ever claimed damages 
on this account. 

The plaintifiTs, as commissioners on inland fisheries, appointed by 
the governor and council, and pursuant to the authority conferred 
on them as such commissioners by the Sts. of 1866, c. 238 ; 1867, c. 
344; and 1869, c. 384, § 2; after due notice to the defendant cor- 
poration, examined its dam, and determined the mode in which a 
fishway should be constructed therein, suitable and suflScient, in the 
opinion of the commissioners, to secure the passage of salmon and 
shad up the river and over the dam in their accustomed seasons. 
Such a fishway would cost about thirty thousand dollars, and, as 
was proved at the hearing, would not diminish the water power of 
the defendants except when they may desire to add to the present 
height of their dam by flashboards. The commissioners furnished 
the defendants with a plan and sj^ecification of such fishway, filed a 
copy of the same in the oflice of the secretary of the Common- 
wealth, and required the defendants to build and complete a fish- 
way in accordance therewith, or to agree with the plaintiffs for the 
construction of such a fishway. But the defendants refused and 
neglected for thirty days to comply with this request, upon the 
ground that they were not required by law to do so, and that the 
Commonwealth had no power or right to command or require them 
to build such a fishway. The plaintiffs thereupon, in their own 
names, but in behalf of the Commonwealth, and in accordance with 
the St. of 1869, c. 422, filed this bill in equity to compel the con- 
struction of such a fishway. 



1872.] SENATE— No. 3. 67 

The defendants contend that the statutes of the Commonwealth, 
under which they have been required to make this fishway, are in- 
operative and void, because they impair the obligation of the con- 
tract contained in the charter from the Commonwealth to the Had- 
ley Falls Company (whose rights the defendants have), and so 
contravene that article of the Constitution of the United States 
which prohibits the States from passing any law impairing the 
obligation of contracts. The question to be determined therefore 
is. What was the contract between the Commonwealth and the 
Hadley Falls Company ? This question must be answered by the 
application, to the charter of that company, of well settled princi- 
ples of constitutional law, and of the construction of statutes, 
which it will be convenient to state, before proceeding to a par- 
ticular consideration of the terms of this charter. 

In England, where the powers of the legislature are unfettered 
by a written constitution, and no act of a prior parliament can 
abridge the power of a subsequent one, there could be no doubt of 
the authority to pass a statute requiring the owner of any dam to 
erect and maintain such fishways as commissioners appointed for 
the purpose might prescribe. 1 Bl. Cora. 90, 160, 161. Ilodgdon 
V. Little, 14 C. B. (N. S.) Ill, and 16 C. B. (N. S.) 198. Rolle v. 
Wkyte, Law Rep. 3 Q. B. 286, 306. 

In the United States, it has been settled for more than half a 
century, by the decisions of the supreme court, that a grant or 
charter from a State legislature is a contract, within the meaning of 
the article of the Constitution which declares that no State shall 
pass any law impairing the obligation of contracts. Fletcher v. 
Peck, 6 Cranch, 87. Terrett v. Taylor, 9 Cranch, 43. Dartmouth 
College v. Woodwai^d, 4 Wheat. 518. In a still earlier case. Chief 
Justice Parsons, delivering the judgment of this court, clearly 
stated the true rule, saying : " We are satisfied that the rights 
legally vested in this, or in any corporation, cannot be controlled or 
destroyed by any subsequent statute, unless a power for that pur- 
pose be reserved to the legislature in the act of incorporation." 
Wales V. Stetson, 2 Mass. 143, 146. 

But no act of the legislature is to be declared invalid by the 
courts, as a violation of a paramount and controlling article of the 
Constitution, unless the repugnancy between the two is manifest 
and unavoidable. When a statute has been passed with all the 
forms requisite to give it the force of law, it must be regarded as 
valid, unless it can be clearly shown to be in conflict with the Con- 
stitution. Fletcher v. PecJc, 6 Cranch, 87, 128. Dartmouth Col- 



68 INLAND FISHERIES. [Jan. 

lege v. Woodward^ 4 Wheat. 518, 625. Norwich v. County Com- 
missioners^ 13 Pick. 60. 

In this country, as in England, every grant from the sovereign 
power is, in case of ambiguity, to be construed strictly against the 
grantee and in favor of the government. The rights of the public 
are therefore not to be presumed, to have been surrendered to a cor- 
poration, except so far as an intention to surrender them clearly ap- 
pears in the charter. The grant of a franchise from the Common- 
wealth for one public object is not to be imnecessarily interpreted 
to the disparagement of another. Charles River Bridge v. Warren 
Bridge^ 11 Pet. 420, 544-548. Perrine v. Chesapeake <jb Delaware 
Canal Co.^ 9 How. 172, 192. Bichmond^ Fredericksburg & 
Potomac Railroad Co. v. Louisa Railroad Co.^ 13 How. 71. 
Cleavelandy. Nortoyi^ 6 Cush. 3S3, 384. Boston v. Richardson^ 13 
Allen, 146, 156. It is upon this principle that it has been held that 
a general authority to lay out highways will not warrant the laying 
out of a highway over navigable waters ; that a charter for the 
construction ^f a turnpike or railroad from one place to another 
will not authorize the grantees to obstruct an existing highway, un- 
less such obstruction is necessary to give a reasonable effect to the 
statute ; and a grant of land covered by tide water does not affect 
the power and duty of the legislature to protect the public rights 
of navigation and fishing over it. Commonwealth v. Coombs^ 2 
Mass. 489. Wales v. Stetson^ lb. 143. Springfield v. Connecticut 
River Railroad Co.^ 4 Cush. 63. Commonwealth v. Alger^ 7 Cush. 
53. 

As was said by Chief Justice Shaw, in Commonwealth y. Essex 
Co.^ 13 Gray, 239, 247 : *' It is plainly within the province of the 
legislature to determine and regulate the use of all common and 
public rights and easements. The rights of navigation on tide 
waters, and of the use of streams not navigable for boats and rafts, 
are public, and such rights are subject to regulation. It sometimes 
happens that the full enjoyment of two public rights would, to some 
extent, interfere with each other ; as where a highway, turnpike or 
railroad crosses a navigable or boatable stream. It is then for the 
legislature to determine which shall yield, and to what extent, and 
whether wholly, or in part only, to the other ; and such questions 
will ordinarily be determined by the legislature, according to their 
conviction of the greater preponderance of public necessity and 
convenience." 

By the law of Massachusetts, the erection and maintenance of a 
mill-dam to raise a water power for manufacturing and mechanical 
purposes is doubtless a public use, for which private property and 



1872.] SENATE— No. 3. • 69 

rights may be taken, making due compensation. Ilazen v. Essex 
Co., 12 Cush. 45. Commonioealth v. Essex Co,, 13 Gray, 249, 250. 
Talbot V. Hudson, 16 Gray, 417, 422. But the right to have mi- 
gratory fish pass, in their accustomed course, up and down rivers 
and streams, though not technically navigable, is also a public right, 
and may be regulated and protected by the legislature in such a 
manner, through such commissioners or other officers, and by means 
of such forms of judicial process, as it may deem appropriate ; and 
every grant of a right to maintain a mill-dam across a stream vi^here 
such fish are accustomed to pass is subject to the condition or 
limitation that a sufficient and reasonable way shall be allowed for 
the fish, unless cut off by express provision or obvious implication 
in the grant. This is settled by a series of cases, and was indeed 
admitted by the learned counsel for the defendants at the argument. 
Storighton v. Baker, 4 Mass, 522. Commonicealth v. Chapin, 5 
Pick. 199. Yinton v. Welsh, 9 Pick. 87. Commonioealth v. Alger, 
7 Cush. 98-101. Commonwealth v. Essex Co., 13 Gray, 247-250. 
The legislature of the Commonwealth, before the granting of the 
charter of the Hadley Falls Company, had declared that every act 
of incorporation, passed since the 11th of March, 1831, should " at 
all times be subject to amendment, alteration or repeal, at the 
pleasure of the legislature," with a proviso that no such act, con- 
taining an express limit of its duration, should be repealed, unless 
for some violatioa of the charter, or other default. This statute, 
first introduced into the general legislation of the Commonwealth 
by St. 1830, c. 81, and reenacted in the Rev. Sts. c. 44, § 23, and 
the Gen. Sts. c. 68, § 41, has been as much a part of all charters 
since granted as if inserted therein ; and was manifestly adopted 
with the intention of reserving for the future a fuller parliamentary 
or legislative power than would otherwise be consistent with the 
effect to be allowed to the special terms of particular charters, under 
the judicial construction of the constitutional prohibition against 
impairing the obligation of contracts. The extent of the power re- 
served by such an enactment has been the subject of some diver- 
sity of judicial opinion, and a definition of its extreme limit is not 
necessary to this case. It is sufficient now to say that it is estab- 
lished by adjudications which we cannot disregard, and the princi- 
ples of which we fully approve, that it at least reserves to the legis- 
lature the authority to make any alteration or amendment in a 
charter granted subject to it, that will not defeat or substantially 
impair the object of the grant, or any rights which have vested 
under it, and that the legislature may deem necessary to secure 
either that object or other public or private rights. 



70 INLAND FISHERIES. [Jan. 

Under such a clause, for instance, the legislature may make the 
stockholders of an incorporated bank liable for the future debts of 
the corporation. Sherman v. Smithy 1 Black, 587 ; 8. C. nom. In 
re Lee & Coh Banh^ 21 N. Y. 9. It may vary the measure, and 
thus enlarge the proportion, of the profits which a mutual life in- 
surance company is required by the terms of its charter to pay to a 
charitable institution. Massachusetts General Hospital v. State 
Assurance Co.^ 4 Gray, 227. Railroad corporations may be com- 
pelled, by general or special laws, to make changes in the level, 
grade and surface of the road-bed, new structures at crossings of 
other railroads or of highways, or station-houses at particular places, 
in a manner, and to be enforced by forms of process, different from 
those provided for or contemplated by the original charter, or the 
general laws in force when that charter was granted. Roxhury v. 
Boston <jb Brovide?ice Bailroad Co., 6 Cush. 424. Fitchhurg Rail- 
road Co. V. Grand Junction Railroad db Depot Co., 4 Allen, 198. 
Commonicealth v. Eastern Railroad Co., 103 Mass. 254. Albany 
Northern Railroad Co. v. Brownell, 24 N. Y. 345 ; overruling 
Miller v. New York db MHe Railroad Co., 21 Barb. 513, cited for 
the defendants. 

In the light of the principles thus established, we proceed to ex- 
amine more particularly the provisions of the charter of the Hadley 
Falls Company. 

The first section creates the corporation " for the purpose of con- 
structing and maintaining a dam across the Connecticut River, and 
one or more locks or canals in connection with the said dam ; and 
of creating a water power to be used by said corporation for manu- 
facturing articles from cotton, wool, iron, wood and other materials, 
and to be sold or leased to other persons and corporations, to be 
used for manufacturing or mechanical purposes, and for the pur- 
poses of navigation;" and declares that it "shall have all the 
powers and privileges, and be subject to all the duties, liabilities 
and restrictions, set forth in the thirty-eighth and forty-fourth chap- 
ters of the Revised Statutes." The second section authorizes the 
corporation to hold real estate of a certain value, and limits tlie 
amount of its capital stock. The next two sections are as follows : 

" Section 3. Said corporation is hereby authorized and em- 
powered to construct and maintain a dam across said river at South 
Hadley, at any point between the present dam of the Proprietors 
of the Locks and Canals on Connecticut River and the lower locks 
of said proprietors, and of a height sufl[icient to raise the water to a 
point not exceeding the present level of the water above said last 
mentioned dam. 



1872.] SENATE— No. 3. ' 71 

" Secttox 4. Said corporation shall pay such damnges to the 
owners of the present fishing rights existing above the dam which 
the said company is herein empowered to construct, as may be 
aw^arded by the county commissioners of the counties in which said 
rights exist." 

By section 5, " The Hadley Falls Company, or any of the owners 
of said fishing rights, may at any time apply to said county com- 
missioners to proceed to ascertain and determine the damages to 
said fishing rights ; " and on such application, the county commis- 
sioners, after public notice and hearing, " shall determine and award 
the damages to the said fishing rights, within sixty days from the 
application to them for that purpose ; subject, however, to an appeal 
to a jury from such assessments, in the same manner, and with like 
proceedings, as in cases of assessments of damages by county com- 
missioners for land taken for highways ; and all expenses accruing 
under such application to and determination of the county commis- 
sioners shall be borne by the Hadley Falls Company." 

By section 6, " for the purpose of reimbursing said corporation, in 
part, for the cost of keeping said locks and canals in repair, and 
tending the same," it is authorized, with the consent of the Pro- 
prietors of Locks and Canals on Connecticut River, to charge tolls 
on merchandise, boats and rafts. 

No express authority is given by this charter to maintain a dam 
without a fish way. Its terms and provisions do not preclude the 
inference that the legislature contemplated the construction of a 
dam wdth a suitable passage for fish, so as not unnecessarily to im- 
pair the public right in that regard ; and that, if the corporation 
should not make proper fishways, they might be compelled to do so 
by more specific legislation. The assessment of damages to fishing 
rights previously existing above the dam is quite as consistent with 
a partial interruption and injury of those rights, as with their utter 
destruction. The leoislature mav well have thouG^ht that a dam 
across the Connecticut River, with any kind of fish way which could 
be made, would to some extent interfere with the passage of fish, 
and injure the fishing rights above. But it is admitted that the 
dam, as actually constructed and maintained, has utterly destroyed 
those fishing rights. No provision whatever is made for compensa- 
tion for injuries caused, by the construction and maintenance of the 
dam, to fishing rights in the river below. The fact that the owners 
of such rights have not claimed such damages, or were not even 
aware of the injury done to them, aifords no reason why the legis- 
lature, upon being satisfied, by larger knowledge or scientific inves- 



72 INLAND FISHERIES. [Jan. 

tigation, that there are such rights, of value to the public, requiring 
protection, should not legislate accordingly. 

The scope and effect of this statute, and the extent of the con- 
tract thereby made between the Commonwealth and the corpora- 
tion, may be best seen and understood by comparing it with the 
legislation in the Case of the Essex Compa'ny^ 13 Gray, 239, upon 
which the defendants principally rely to sustain their defence. 

The original charter of the Essex Company, besides making it a 
corporation, and authorizing it to construct and maintain a dam 
across the Merrimack River, with provisions substantially corre- 
sponding to those contained in the first three sections of the charter 
of the Hadley Falls Company, expressly required the Essex Com- 
pany to " make and maintain, in their dam so built by them across 
said river, suitable and reasonable fishways, to be kept open at such 
seasons as are necessary and usual for the passage of fish ; " and 
provided that such fishways should be made to the satisfaction of 
the county commissioners. St. 1845, c. 163, §§ 5, 7. The Essex 
Company accordingly constructed the dam with a fishway to the 
satisfiiction of the county commissioners. In 13 Gray, 250, the 
court guardedly abstained from expressing an opinion upon the 
question, " whether, if the fishways actually provided had proved 
wholly unfit and inadequate to their purpose, and other measures 
could be provided within a reasonable cost, which could be shown 
to be probably effectual, the legislature could, by further legislation, 
have required the company to construct such other fishways." 

By the St. of 1848, c. 295, the Essex Company was authorized to 
increase its capital stock, upon the express condition that " said 
company shall be liable for all damages that shall be occasioned to 
the owners of fish rights, existing above the said company's dam, 
by the stopping or impeding the passing of fish up and down the 
Merrimack River by the said dam ; " that such damages should be 
assessed by the county commissioners, and, if either party should 
be dissatisfied with their assessment, by a jury ; and that nothing 
in the seventh section of the original charter should be deemed or 
taken as a bar to any claim for such damages. This act was made 
subject to acceptance by the corporation, and was duly accepted ; 
and in accordance with it large sums of money, amounting to more 
than twenty-five thousand dollars, were paid by the Essex Com- 
pany to various owners of fish rights above the dam, as damages for 
hindering or impeding the passage of fish by the dam with such 
fishways. 

In that case, the court, taking into consideration the facts, 
(offered to be proved by the corporation, and therefore regarded by 



1872.] SENATE— No. 3. 73 

the court as having the same bearing as if actually proved,) that, at 
the time of the passage of the second act, the dam had been in 
operation some time, with the fishway prescribed, and. had proved 
to be unsuitable or insufficient to accomplish the proposed purpose 
of providing for the passage of the fish ; and also considering that 
the legislature, in passing it, acted both in behalf of the public and 
in behalf of all those riparian owners whose fish rights would be 
damnified by the defendants' dam ; held that that act, having been 
so passed by the legislature and accepted by the corporation, con- 
stituted a contract, which exempted the latter from the obligation 
of making and maintaining a suitable and sufficient fishway, and 
which had been executed on the part of the corporation by the 
payment of a large sum of money to the parties whose fish rights 
were injured, and was binding on the Commonwealth ; and there- 
fore the legislature could not, either under the general power to 
protect and regulate the fisheries, or under the power to alter, 
amend and repeal charters, afterwards require the corporation to do 
the acts which, by the terms of the contract so made and performed, 
it had been exempted from doing. 

In the Case of the Essex Company^ the corporation had built a 
fishway in its dam, as required by the legislature, and to the satis- 
faction of the county commissioners, and had afterwards been 
granted an enlargement of its charter, upon the consideration that 
it should pay the damage caused to the owners of fishing rights by 
the dam as already built, with a fishway known to the legislature to 
be insufficient ; it did not appear that any fishing rights below the 
dam were injured; and the court expressly assumed that the cor- 
poration had indemnified all parties damnified in their several fish- 
eries ; and, under those circumstances, held that the right to main- 
tain the dam with the existing imperfect fishway had been paid for 
and had vested in the corporation, and that the contract between 
the Commonwealth and the corporation, thus executed, could not 
be afterwards impaired without violating the Constitution of the 
United States. • 

But in the case at bar, it not only appears that there are fishing 
rights below, which are injured by the dam, and for the injury to 
which no compensation has ever been made or provided ; but no 
fishway whatever has been constructed ; and the legislature has 
never, before passing the statute now sought to be enforced, exer- 
cised the power of defining what fishway the defendants should 
make ; nor has it ever authorized or approved, by any expression or 
implication, the construction or maintenance of a dam without a 
10 



74 INLAND FISHERIES. [Jan. 

fisliway. In all these respects, this case differs from that of the 
Essex Company. 

The otlier cases cited for the defendants are equally unavailing to 
support their position. In Central Bridge v. Loicell^ 15 Gray, 106, 
the St. of 1843, c. 50, declaring that the sum of ten thousand 
dollars was a portion of the cost of the original bridge not yet re- 
imbursed and repaid to the proprietors under their original charter, 
and, together with the expense of rebuilding the bridge, should 
constitute the capital stock of the bridge corporation, which it was 
held could not be afterwards repealed by the legislature, had been 
made subject to acceptance, and had been actually accepted, both 
by that corporation and by the city within whose limits the bridge 
was, and thus constituted a contract between the city and the 
bridge corporation ; and it was also in amendment of a charter 
which had been granted in 1824, and which therefore was not 
subject to alteration, amendment or repeal at the pleasure of the 
legislature. 

In Boston & Loioell Railroad Co. v. Salem <jb Lowell Railroad 
Co., 2 Gray, 1, the plaintiffs' charter, which was held to constitute a 
contract between them and the Commonwealth that no other rail- 
road should be authorized to be made from Boston to Lowell, con- 
tained an express provision to that effect, and no reservation of 
power to the legislature, except to regulate the tolls, and was 
granted before the enactment of the general provision upon that 
subject in the St. of 1830, c. 81. So in Commonwealth v. N'ew 
Bedford Bridge^ 2 Gray, 339, the decision that a chapter to build a 
toll-bridge over navigable waters, with draws of a certain width, 
was unconstitutionally infringed upon by a statute requiring the 
corporation to make draws therein of a greater width, was put upon 
the grounds that the width of the draws had been expressly pre- 
scribed by the charter, that the bridge had been built accordingly, 
and that no power had been reserved in the charter, or by the gen- 
eral laws in force when it was granted, to alter, amend or rej^eal it. 
The cases in which a railroad corporation has been held by this 
court to be entitled to recover compensation from another railroad 
corporation, authorized by subsequent statute to cross its track, 
were decided upon the ground that the legislature manifested no 
intention by the second charter to alter, amend or repeal the first, 
and on considerations similar to those upon which it had been 
previously held that a charter to construct a railroad was not to 
be presumed to authorize the taking either of land or easements 
belonging to the Commonwealth, without compensation. Common- 
wealth V. Boston iJb Mai7ie Railroad, 3 Cush. 107, 113. Old Colony 



1872.] SENATE— No. 3. 75 

€& Fall River Boilroad Co. v. Plymouth^ 14 Gray, 155. Grand 
tTunction Railroad (jb Depot Co. v. County Commissioners^ lb. 553. 

The decisions of the supreme court of the United States in 
McGee v. 3Iathis^ 4 Wallace, 143, and Yo7i Hoffman v. Quincy^ 
lb. 535, related to the power of taxation ; and in each of them 
there was a specific clause of exemption or benefit in the original 
legislative act, upon the faith of which contracts had been executed 
between the corporation and third persons. It is well set'tled by a 
series of decisions of the same court that a legislative exemption 
from taxation is not to be inferred without most explicit words. 
Providence Banh v. Billings^ 4 Pet. 513, 524. Pltiladelphia tjb 
Wilmington Railroad Co. v. Maryland^ 10 How. 376. Christ 
Church V. Philadelphia^ 24 How. 300. Thomson v. Pacific Rail- 
road Co., 9 Wallace, 579. 

It only remains to consider the cases, cited for the defendants, 
which have arisen in the State of Connecticut. 

In Enfield Toll Bridge Co. v. Hartford cb JVeic Haven Railroad 
Co., 17 Conn. 40, it was held that a charter granted by the legisla- 
ture of Connecticut in 1798, to build and maintain a toll-bridge for 
one hundred years, or until the expenses of its construction and 
maintenance should be reimbursed, with a proviso that no person 
or persons should have liberty to build another bridge within cer- 
tain limits on the same river, constituted a contract, the obligation 
of which was impaired by granting to a railroad corporation the 
right to erect a bridge within those limits, to be used exclusively 
for railroad travel, and over which the railroad corporation should 
not permit any other passing. Upon that case it may be remarked, 
1st. It does not appear that any power of altering or amending 
the original charter had been reserved by the legislature ; 2d. The 
charter of the bridge company contained an express stipulation 
that no other bridge should be authorized to be built at that place ; 
3d. The judgment that the bridge or viaduct of a railroad cor- 
poration was such another bridge is in direct conflict with the re- 
cent decision of the supreme court of the United States in Bridge 
Proprietors v. Hoboken Co., 1 Wallace, 116. 

In Washington Bridge Co. v. State, 18 Conn. 53, the original 
charter of the bridge company, which fixed the width of the draw 
in the bridge, and which was held to be violated by a subsequent 
act requiring them to make a draw of greater width, reserved a 
power of regulating the bridge and tolls to the legislature, only in 
the event, which had not come to pass, of the corporation having 
been reimbursed the moneys expended in building the bridge, with 



76 INLAND FISHERIES. [Jan. 

interest thereon at the rate of twelve per cent, annually ; and the 
intermediate act of the legislature, accepted by the corporation, 
which was held by the court not to affect the original provision as 
to the width of the draw and to leave those whose rights of naviga- 
tion miglit be impaired to such remedies as the law had provided, 
relieved the corporation from some burdens, and made their grant 
exclusive for a certain distance upon the river, besides providing 
that nothing therein contained should be so construed as to impair 
the rights, privileges and immunities of persons using and navigating 
the river. 

The case of Hartford Bridge Co. v. East Hartford^ 16 Conn, 
149, 17 Conn. 79, and 10 How. 511, upon which much stress was 
laid by the defendants, was as follows: In 1808, the general as- 
sembly of Connecticut passed an act, incorporating the Hartford 
Bridge Company, and authorizing it to build a bridge across the 
Connecticut River between the towns of Hartford and East Hart- 
ford, to the satisfaction of commissioners appointed by the assem- 
bly, and to take tolls thereon ; and providing that " whenever the 
said tolls shall reimburse to said company the sums advanced by 
them in building said bridge, and the expense of lighting, maintain- 
ing and repairing said bridge, and of collecting the toll, with an in- 
terest of twelve per cent, per annum on the same, the said bridge 
and the rate of toll shall be subject to such regulations and orders 
as the general assembly shall think proper to make ;" " that nothing 
in this grant shall now or at any future time in any way lessen, im- 
pair, injure or obstruct the right to keep up the ferries established 
by law between the towns of Hartford and East Hartford ; " " and 
also that the grant may receive such alterations from time to time 
by the general assembly as experience may evince to be necessary 
or expedient." The bridge company accepted this charter, and 
built the bridge to the satisfaction of the commissioners. In 1818, 
the bridge having been carried away by a flood, the legislature 
passed an act providing that when it should have been rebuilt by 
the corporation to the satisfaction of the same commissioners, the 
ferries before mentioned (the privilege of keeping one-half of which 
had been in 1783, by the act separating East Hartford from Hart- 
ford, granted to East Hartford " during the pleasure of the assem- 
bly ") should be discontinued ; and the bridge was rebuilt ac- 
cordingly. The general assembly by subsequent acts declared so 
much of the act of 1818 as provided for the discontinuance of the 
ferries to be repealed. The supreme court of Connecticut held 
that the act of 1818 was constitutional and valid as against the 



1872.] SENATE— No. 3. 77 

town of East Hartford ; but, by a majority of the court, that the 
act which undertook to repeal so much of that act as discontinued 
the ferries was unconstitutional and void, as impairing the obliga- 
tion of the contract between the State and the bridge corporation, 
contained in the act of 1818 ; and that the act of 1808, upon a 
comparison of all its provisions, restrained the legislature from 
making any regulations materially affecting the prescribed revenues 
of the corporation until it should have been reimbursed as therein 
provided. Upon a writ of error sued out by the town of East 
Hartford, the supreme court of the United States affirmed the judg- 
ment, upon the ground that the decision in favor of the validity of 
the act of 1818 was correct, and that the decision against the 
validity of the subsequent legislation could not be revised by that 
court. The whole result of the case is, that the only point decided 
by the supreme court of the United States upon the validity of 
either of the acts of the legislature of Connecticut was, tliat an act 
discontinuing a ferry which had been granted during the pleasure 
of the legislature was valid; and the decision of the majority of 
the state court against the validity of the acts which undertook to 
revive the ferry was based upon the peculiar language of the char- 
ter of the bridge company. 

The chief justice of Connecticut, in delivering the first opinion 
in that case, assumed that if the legislature had manifested an in- 
tention to reserve an unlimited control over the charter, by using 
the language ordinarily employed in reserving such a power — "This 
act may at any time be altered, amended or repealed by the general 
assembly " — the conclusion of the court must have been different. 
16 Conn. 176. And in JEnglish v. N'ew Haven <b Northampton Co.^ 
32 Conn. 240, which is later than any of the cases in that State cited 
for the defendants, the court held that when the legislature had re- 
served a general power of altering, amending or repealing a charter, 
it might impose any additional condition or burden, connected with 
the grant, which it might deem necessary for the welfare of the 
public, and which it might originally and with justice have imposed. 

Upon the whole case, taking into consideration the terms of the 
charter of the Hadley Falls Company, and the power of alteration, 
amendment and repeal previously reserved to the legislature by the 
public statutes of the Commonwealth, we are unanimously of opin- 
ion that the legislature has not surrendered or restricted its in- 
herent power of regulating and protecting the fisheries on the Con- 
necticut River, and, in so doing, of providing for the maintenance 
of a suitable fishway in the dam erected by that corporation ; and 
that the recent legislation compelling the making of such a fishway 



78 INLAND FISHERIES. [Jan.'72. 

does not impair the obligation of any contract of that corporation 
or its assigns with the Commonwealth or any other party. Decree 
for the plaintiffs. 

C. Allen^ Attorney-General, <jb M. 'Williams^ Jr.^ for the plaintiffs. 

W. Gaston^ c& F. Chamherlin (of Connecticut), for the de- 
fendants. 



APPENDIX. 



A COLLECTION 

OF THE 

LAWS OP MASSACHUSETTS RELATING TO INLAND FISHERIES, 

From the year 1G23 through the year 18'yi. 



PLYMOUTH COLONY FISH LAWS. 



(Page 30.) Article 8. That fowling, fishing and hunting be free to all 
the inhabitants of this government : provided, that all orders from time to 
time made by this General Court for the due regulating of fishing and fowl- 
ing be observed in place or places wherein special interest and propriety 
is justly claimed by the court or any particular person. 

1GS3. 

(Page 34.) It is enacted hy the Court, That fishing, fowling and hunting bee 
free : provided, if any damage comes to any particulare by the prosecution 
of such exercise, restitutions bee made or the case actionable. But if any 
man desire to improve a place and stocke it with fish of anj^ kind for his 
private use, it shalbee lawfall for the court to make any such graunt and 
for bid all others to make useof it. 

[Ke-enacted in 1636 and 1658.] 

163'y.— October. 

(Page 57.) Of Fish. — It is enacted hy the Court, That six score and 
twelve fishes shall be accounted to the hundred of all sorts of fishes. 

[lie-enacted in 1658.] 

iG-yo. 

(Page 161.) "Whereas the providence of God hath made Cape Cod com- 
odious for us for fishing with saines ; and some careles psons have 
anoyed the same by casting theire ballast neare the shore where such con- 
veniency is ; or by leaveing the garbidge of fish or dead fish to lye there 
TOting, wherby such auoyace is : 

This Court doth therefore order, That whosoever shall treaspas in any of 
the said kinds of annoyance shall pay the sume of forty shillings to the Col- 
lonie's use for every such default unto the pson that the county doth 
appoint to looke after the same ; alsoe, this court doth further order, that 
whosoever of our inhabitants that draw mackerell on shore there, shall 
pay to the Collonie's use sixpence p. barrcll for every barrell soe taken or the 
quantity that may amount to a barrell ; and for every barrell or the quantitie 



2 INLAND FISHERIES. 

thereof soe taken by any forraigners in the aforesaid place shalbe payed 
one shilling and sixpence to tho Collonie's use by the pson or psous that soe 
fish there ; and at the l^egining of any voyage attempted there, the pson or 
persons soe doing shall att the enterance an the voyage put in sufficient 
cecuritie unto the pson appointed by the court under this trust for the pay- 
ment of the aforesaid sume or sumes. (Continued on page 1G2.) 

(Page 1G2.) Whereas wee have formerly seen great inconvenience of 
taking mackerell att unseasonable times, whereby there encrease is 
greatly dcmiuished, and that it hath bine proposed to the court of the 
Massachusetts that some course might be taken for preventing the same, 
and that they have lately drawne up an order that henceforth noe mackerell 
shalbee caught, except for spending while fresh, before the first of July 
annually, on penaltie of the losse of the same, the one halfe to the informer 
and the other halfe to the use of the Collonie ; and this order to take place 
from the 20th of this instant June. 

138)3. 

(Page 197.) The law prohibited the catching of fish before they have 
spaumed is to be revived by the Comissioners att theire next session. 

(Page 283.) For the better improving of fishing for macki'el at the Cape 
with saynes or nets ; that the fish be not wholly destroyed or driven ofi* the 
shoar, with constant beating and shooting at them with their nets and 
saynes : 

It is ordered by this Court, &c., That none shall set, shoot or hall saj'ue on 
shore with mackrel at the Cape before the fifteenth day of October yearly, 
nor after the twentieth day of November, on penalty of forfeiting for any 
mackrel so taken, without the compass of this time, eight shillings a barrel 
to the Colonie's use. 

And that so good a commodity be not spoiled nor impaired by gripple 
persons that only minde their present benefit ; but that it may be kept sweet 
and well preserved for a market, and so kept a commodity : 

It is further ordered, That all such mackrel taken by saynes or nets at the 
Cape shall be there salted up in good sufficient cask, and not in lumber, 
neither on shoar nor on board of any boat, barque or other vessel, on 
penalty of forfeiting to the Colonie's use the one-half of what is so salted 
in lumber and not in tight casks. 

And forasmuch as the lands where such benefit is made by fishing with 
saynes or nets hath been purchased by the Colony and are truely theirs : 

It is also ordered, That no stranger, or such as are no inhabitants of this 
government, shall make use of our lands or shoar for sayuing or hailing of 
fish, but such as this Court give license to, on penalty of forfeiting all the 
fish of any kinde so taken bj^ any without leave. 

And all strangers that shall be allowed there to fish as abovesaid, whether 
taken in as partners with any of ours or otherwise, shall pay unto our 
water baily, or such as the court shall appoint to receive it, for the use of 
this Colony, two shillings for every barrel or quantity of a barrel of mackrel 
there caught in such away ; and such of our own inhabitants as do so fish 
there, shall pay one shilling a barrel ; and all such pajanents, whether by our 
own or strangers, shall be made in money to the said baily, or who is 
appointed. 



APPENDIX. 3 

Aud that peace and good order may be kept by all that fish there, and 
that the Colony may not be defrauded of theii' due by any : 

It is further ordered, That the master of any vessel that shall come there 
to fish, or some known person of their company, shall presently upon their 
arrival there, before they take any fish, give under his hand to the baily, or 
his deputy, for their peaceable carriage there, and their due observance of 
the orders of the court concerning their fishing, who shall thereupon give 
them a ticket under his hand for their improving the season as abovesaid. 

And if any man do refuse so to do, he or they shall be discharged from 
making use of our land on shoar there, at their peril ; and if any prove 
troublesome, or disturb their peace, sell liquor to the Indians, prophane the 
Sabbath, or be otherwise disorderly, the baily or his deputy is hereby 
impowered to carry such before the next magistrate, who may issue the 
case, send the ofl'enders to prison, or take bond for their appearance at 
court, as he shall see cause, and the whole charge thereof be born by him 
or them that do so ofieud. 

And that the water baily be under oath, as other publick ofiicers, as for 
the faithful discharge of his trust, so for his due and seasonable ordering, 
aud giving an account to the treasurer, for what is the Colouie's upon 
fishing account, within one month after the said voyage is ended, or sooner 
if it may be. 

And for every barrel of herring at any time caught by nets on the said 
Cape Cod shoar, six pence per barrel be paid by any inhabitant that shall so 
take them, and twelve pence per barrel by strangers. 

And whosoever shall take any basse on the aforesaid shoar vrith nets, 
shall pay to the Colonie's use six pence per quintal, according to a former 
order, and to be paid also in money. 

Sect. 5. And it is ordered, tfic. That if any swine, belonging either to 
English or Indians, do there annoy or trespass such as there fish as above- 
said in the mackrel seasons, it shall be lawful for any to make seizure of 
such swine, paying one-half of the value of such swine to the said bail}^ or 
his deputy for the Colonie's use. ***** 



ANCIENT CHAETEES. 

(Page 113, ch. 4G.) Sect. 5. This court being informed that the taking 
of mackrel at unseasonable times do greatly diminish their increase, and 
will in the issue tend to the spoil of the trade thereof: 

Do order and enact, That henceforth no mackerel shall be caught, except 
for spending whilst fresh, before the first of July annually, on penalty of 
the loss of the same, the one half to the informer, and the other half to the 
use of the country. And any magistrate or county court js empowered to 
act herein, to all intents and purposes, for the execution of this law. 

[Repealed March 5, 1693. Page 254, sect. 7, A. Charters. Kevived Massachusetts Perpetual 
Laws, page 143, ch. v., 1702.] 

(Page 148, ch. 63.) Sect. 2. Every inhabitant who is an householder 
shall have free fishing and fowling in any great ponds, bays, coves and 
rivers, so far as the sea ebbs and flows within the precincts of the town 
where they dwell, unless the freemen of the same town or the General 
Coiu-t have otherwise appropriated them. 



4 INLAND FISHERIES. 

Provided, That no town shall appropriate to any particular person or 
persons, any great pond containing more than ten acres of land, and that 
no man shall come upon another's propriety without their leave, otherwise 
than as hereafter expressed. 

The which clearly to determine : 

Sect. 3. It is declared that in all creeks, coves, and other places about and 
upon salt water, where the sea ebbs and flows, the proprietor, or the land 
adjoining, shall have. propriety to the low water mark, where the sea doeth 
not ebb above a hundred rods, and not more wheresoever it ebbs further. 

Provided, That such proprietor shall not by this liberty have power to 
stop or hinder the passage of boats or other vessels, in or through any sea, 
creeks or coves, to other men's houses or lands. 

Sect. 4. And for great ponds lying in common, though within the bounds 
of some town, it shall be free for any man to fish and fowl there, and may 
pass and repass on foot through any man's propriety for that end, so they 
trespass not upon any man's corn or meadow. 

COLONY OF PLYMOUTH. 

WJ84:. 

(Page 205.) This Court doth therefpre enact, and he it heerhy enacted hy the 
authoritie thereof, That no p'rson or p'rsons whatsoever, after the publi- 
cation heerof, shall catch or draw on shore any mackerell, with nett or netti- 
sayne or saines, in any p'rte of this CoUonie, and if any p'rson or p'rsont 
shall heerafter presume to catch any mackerell by setting or shooling any 
nett or saye, every such p'rson or p'rsons soe offending as aforsaid, shall 
forfeitt for his or theire said offence all such netts or saines as shalbe soe 
improved, and all such mackerell as shalbe soe caught by him or them; 
and shall alsoe forfcite every such vessell and all such vessells or boates as 
shalbe imployed therin, whether catch sloop or boate as shalbe imployed 
in taking or carrying away any such fish, if att any time the p'rson or p'rsons 
soe offending be taken within the govrment, or the valine thereof, the one 
moiety to the CoUonie and the other moj-ety to the informer that shall 
prosecute the same. 

And for the better execution of the said law, power shall be given by 
some one or more of the magestrates by warrant to some fitt man to act as 
a water bayliff to make seasure of any such forfeitures as aforsaid. 

PEEPETUAL LAWS. 

(Page 1-43, ch. 5.) Be it enacted, That the clause above recited, shall be, and 
is hereby revived and re-enacted : and that henceforth no person or persons 
whatsoever shall presume to catch or cause to be caught any mackerel (ex- 
cept for spending whilst fresh) before the first of July annually ; on penalty 
of forfeiting all the mackrel so caught contrary- to the true intent and mean- 
ing of this act, and tw^enty shillings perbarell over and above for each bar- 
rel of the same : the one half of the said forfeiture to be to her majesty, 
for, and towards the support of this her government ; and the other half 
to him or them that shall inform and sue for the same in any of her majes- 
ty's courts of record within this province. 



APPENDIX. 5 

1-709. 

An Act to prevent Nuisances by Hedges, Wears, and other incumbrances obstructing 
the passage of Fish in Kivers. 

(Page 162, ch. 3.) Be it enacted, That no wears, hedges, fish-garths, 
stakes, kiddles, or other disturbance or incumbrance shall be set, erected 
or made, on or across any river, to the stopping, obstructing, or straitning 
of the natural or usual course and passage of fish in their seasons, or 
spring of the j'car, without the approbation and allowance first had and ob- 
tai*ed from the general sessions of the peace in the same county ; who 
are hereby authorized and impowered, on application made to them at their 
sessions, to grant liberty for the same, or to deny it, as they shall see it to 
bee either a public good or damage ; and so yearly from time to time, to be 
allowed or disallowed, as they shall direct. 

And that all wears, hedges, fish-garths, stakes, kiddles, or other incum- 
brance whatsoever, set up and made, or hereafter to be levied, set up or 
made in, on or across any river, to the straitning, obstructing and stopping 
the natui'al, common or usual passage of fish in the spring or proper sea- 
sons of the year, without approbation or allowance first had and obtained 
for the same, in manner as in and by this act is directed, are declared to be 
a common nusance, and shall be demolished and pulled down, not to be 
again repaired or amended. And that on complaint made to the general 
sessions of the peace, or to any two justices of the peace, quorum v.nv.s, in 
their respective counties ; a wi'it shall be granted to the sherifl' or consta- 
ble of the town where the nusance is done, to cause the party or parties 
complained of to be examined ; and upon conviction to remove the same ; 
and to command suitable assistance therefor, at the cost and charge of the 
person or persons so ofieuding. 

Provided, That nothing herein contained, shall be construed to extend to 
the pulling down or demolishing ©f any mill-dam already made, or that shall 
hereafter be lawfully and orderly made. 

IIST. 

An Act for rendering more effectual the Act intituled An Act to prevent Xusances by 
Hedges, Weares, and other incumbrances obstructing the passage of Fish in Rivers. 

(Page 239, ch. 9.) TThereas, in and by an act made and pass'd in the 
eighth year of the reign of Queen Anne, intituled An Act to prevent nusances 
by hedges, weares, and other incumbrances obstructing the passage of fish 
in rivers, all such incumbrances in the rivers are disallowed and forbid- 
den without the approbation of the courts of general sessions of the 
peace in the respective counties, and ordered to be demolished and pulled 
down, but no penalty is provided in the said act : 
Wherefore, for the more efi'ectual preventing such nusances : 
Be it enacted, That whosoever after the publication of this act, shall set 
ap, erect or make any weares, hedges, fish-garths, stakes, kiddles, or other 
incumbrances whatsoever, on or across any river for straitning, obstruct- 
ing or stopping the natural, usual or common passage of the fish in the 
spring or other proper seasons of the year, without the approbation of the 
court of general sessions of the peace, shall for every such oflence forfeit 
and pay the sum of ten pounds, to be sued for and recovered by plaint, bill, 
or information, in any of his majesty's courts of record within the county 



6 INLAND FISHERIES. 

Tvhcre the offence is committed ; one half thereof to be to him that shall 
inform and tsue for the same, and the other half to the poor of the town or 
towns where such incumbrances have been made or set up. 



1741. 

An AcTiu addition to an Act made to prevent the Destruction of the Fish called Alewives, 

and other Fish» 

(Page 297, ch. 6.*) Whereas, notwithstanding the several acts made for 
the preservation of the fish, and to give them free passage up and down the 
rivers in their seasons, j-et by reason of the many dams erected, and often 
erecting across such rivers and streams where the several sorts of fish pass 
up into the natural ponds to cast their spawns, said fish are diverted in their 
passage, to the great -decay and ruin of such fishery : 

Be it therefore enacted. That whosoever shall hereafter erect or build any 
dam across any such river or stream where the salmon, shad, alewives, or 
other fish usually pass up into the natural ponds to cast their spawn, shall 
make a sufficient passage-way for the fish to pass up such river or stream, 
through or round such dam, and shall keep it open for the free passage of 
tlie fish from the first day of April to the last day of May annually, and all 
the owners or occupants of any mill-dam or other dams heretofore erected 
and made across any such river or stream where the fish can't conveniently 
pass over, shall make a sufficient way either round or through such dam 
for the passage of such fish, at or before the first day of September 
next, and after that to keep such passage way open from the first day of 
April to the last day of jNIay annually, on pain that every person offending 
in any of the particulars aforesaid, shall forfeit and pay the sum of fifty 
pounds for each offence. 

Provided, nevertheless, TVTiereas, in some of the rivers or streams, the said 
fish do not pass up to spawn in the times by tJiis act provided for, that it 
shall be in the power of the several towns wherein such streams are, or are 
adjoining, or the selectmen of such towns, or the major part of them, to 
appoint or order the times of keeping open such sluice-ways as in their 
judgment may be agreable, to the natural time of said fish pasaing up to 
spawn, so as it does not exceed sixty days annually. 

And he it further enacted, That the owners or occupants of such dam or 
dams, shall allow sufficient water passage round, through or over such dams, 
for the passage of such fish or their young spawn, in the season of their 
going down such rivers or streams, on penalty of forfeiting the sum of fifty 
pounds for every offence. 

Provided, nevertheless. That whosoever is an owner or occupant of such 
dam or dams erected before the year one thousand seven hundred and nine, 
and by this act is obliged to make such passage-way for the fish as afore- 
said, shall, after he has effected the same, jDrescut his account of the reason- 
able charge thereof, to the court of general sessions of the peace of the 
same county for their allowance, who are hereb}' impowered to proportion 
the several towns' parts thereof who are advantaged thereby, and order each 
of said towns to assess and pay the same to such owner or occupant ac- 

* Chap. 7, 17il, supplementary. 



APPENDIX. 7 

cordinglT, and the owners or occupants of such dam, shall afterwards 
mamtain such passage-way at his or their own cost and charge. 

And he it further enacted. That it shall be in the power of any town at their 
annual meeting in March, to chuse one or more persons, whose business it 
shall be to see that the said passage-ways are open pursuant to this act, and 
that said fish may not be obstructed in their usual passing up and down 
stream, and to appoint the proper place or places for the taking such fish 
with scoop nets, and to limit the particular times and days for the taking 
the same. 

Provided, also. That this act shall not be construed so as to afi'ect the 
order of this Court, pass'd in January, one thousand seven hundred and 
thirty-eight, relating to Watertown mill-dam. 

And that the several fines and penalties arising by virtue of this act, shall 
be sued for and recovered in any court of record proper to try the same, 
by any person that shall prosecute and sue for the same, one half of such 
sum to be to and for the use of the prosecutor, and the other half to be to 
and for the use of the poor of the town where the offence shall be com- 
mitted. 

Ak Act in Supplement of an Act intituled " An Act in addition to an Act made to prevent 
the Destruction of the Fiih called Alewives and other Fiih." (1741, ch, 6.^ 

(Page 29 S, ch. 7.) Whereas, ***** no penalty is 
therein ordered to be imposed on such as shall take alewives or other fish 
at other times or places, than such as shall be appointed in pursuance of 
said act : 

Be it therefore enacted, That whosoever shall presume to take any of the 
kinds of fish in said act enumerated (whether with scoop-nets or other- 
wise) in any river or stream within or adjoining to any town within this 
province, at any other place or time than such as has been or shall be limit- 
ed and appointed by any tovm in ptirsuance of said act, such ofltnder or 
offenders shall forfeit and pay the sum of ten shillings for each oflence ; one 
moiety thereof shall be for the use of the poor of the town where the offence 
shall be committed, the other moiety to be to him or them who shall inform 
and sue for the same before one or more of his majesty's justices of the 
peace in the same county. 

Prorided, That this act be not construed to affect any person taking fish 
in any town where such town shall not in manner as aforesaid, appoint the 
time and place for taking the fish aforesaid. 



Ax Act in addition to an Act made in the fifteenth year of his present Majesty's reign, 
intituled " An Act in addition to an Act made to prevent the Destruction of the Fish 
called Alewives and other Fish.-' 

(Page 313, ch. 5.) TThereas, ***** by reason that 
no direction is therein given with respect to the suflBciency of the sluice or 
passage so to be made or left open, there arises great difficulty to the 
owner or occujxmt of such dams in complying therewith : And whereas, by 
reason that in some streams and rivers the said fish pass sooner, and in 
others later in the year than the time is prescribed in said additional act, as 
well as that the time of their passing up and down is in some streams and 



8 INLAND FISHERIES. 

rivers longer, and in some shorter, so that it is found by experience that 
the general rule in the aforesaid cases by law provided, does not only fail 
of the good ends proposed thereby, but also exposes the owners and occu- 
pants of such dams to trouble and damage not necessary to answer the 
good purposes of said additional act : Wherefore, 

Be it enacted, That it shall and may be lawful for any owner or occupant 
of any such dam or dams already built, or that may hereafter be built, and 
who are or may be obliged by said additional act to open or leave open 
such passage as aforesaid, to apply to the next court of general sessions 
of the peace, to be holden in and for the county where such mill-dam is, 
and the justices of the court respectively, on such application, are impow- 
ered, and directed to appoint a committee of three sufficient and as much 
as may be disinterested persons, under oath, to repair to the dam where the 
passage is proposed to be opened, and carefully view the same, and in the 
best manner they are able, to inform themselves of the most proper place for 
the passage of such fish up and down stream, of what dimensions the same 
shall be made or appointed to be, and what part of each year, and how long 
the same shall be kept open ; and return the same under their hands, or the 
hands of the major part of them, to the said court for their acceptance; 
which return so made and accepted, shall be deemed and adjudged the law- 
ful rule of proceeding in making and keeping open the passage and passages 
for the fish in passing up and down the rivers and streams for the future : 
anything contained to the contrary in said additional act notwithstanding. 

Provided, nevertheless. That if at any time after such determination, either 
party shall think themselves aggrieved by such determination, it shall and 
may be lawful for the owner or owners, occupant or occupants of such mill- 
dam or dams, or any other five persons of the other party, who may expect 
benefit by said fish i)assing up such rivers or streams, once more to apply 
to the said court for a new view, and report on the premises in manner 
aforesaid, which being by said court accepted, shall be final ; the charge of 
such application to be born by the persons applying, in case no material 
alteration on the first return is made, but otlierways be born by the owners 
of the dam, in proportion to their interest, to be first stated and allowed by 
the said court of general sessions, and may be recovered by action or ac- 
tions of debt in any court proper to try the same. 

An Act in addition to and for rendring more eflectual the Laws already in being for pre- 
venting the Destruction of the Fish called Alewives, and other Fish. (Page 320, ch. 2 ) 

(Preamble. The two preceding acts are here quoted.) 

And whereas, it may happen that in some rivers or streams, across which 
dams are built, it may be doubtful whether the fish may be said to usually 
pass or cast their spawn, and so as to render it necessary that a way should 
be left open in such dams for their free passage, and many inconveniencies 
may arise from such doubt or uncertainty : 

Be it therefore enacted. That when and so often as application shall be 
made to the court of sessions by the owner or occupant of any mill-dam 
or dams, either of such dams as have no passage-way, or of such dams 
through which a passage-way has been already made, and a committee 
shall thereupon be appointed by such court pursuant to the last recited act. 



APPENDIX. 9 

and such committee shall rci)air to any dam or dams, and it shall appear to 
them upon inquiry, that the fish do not, or in case of a passage being made 
or kept open, would not usually pass up the river or stream across which 
such dam is or shall be built in such numbers as that it is necessary a pas- 
sage-way through such dam should be made or kept open, or that the pass- 
ing of the fish up such river will not be of greater general benefit than 
the leaving open of passage-ways in such dams will be of damage to the 
owners of the mills and other persons, then, and in either of such cases, 
said committee shall be impowered to make a report that such passage-way 
is not necessary, and such report being accepted by the court of ses,sions, 
the owner or occupant of such dam, shall thereupon be freed from all ob- 
ligation to maker or keep open any passage ; any thing in the aforemen- 
tioned acts to the contrary notwithstanding. And the charge of the appli- 
cation that shall he made by the owner or occupant of any mill-dam or dams, 
and all proceedings of the court thereupon, pursuant to this act, or to the 
said last recited act, shall be born and paid by such owner or occupant. 

Provided, ahmys, That if at any time after such determination, any per- 
son apprehending it necessary that a passage-way should be opened in such 
dam, shall thereupon make application to the court of sessions, said court 
shall be impowered to appoint a new committee, who shall have the same 
power the first committee by law had, or might have had, and upon such 
committee's reporting that a passage-way is necessary in such dam or dams, 
and the demensions thereof, and the time it shall be kept open, and upon 
such report being accepted by the court of sessions, the owner or occu- 
pant of such mill or dam shall be as fully obliged to keep open such passage 
as if the former report had never been made and accepted ; any thing in this 
act to the contrary notwithstanding ; the charge of such application and 
all proceedings thereupon, to be paid by the person or persons making the 
same, or by the owner or occupant of such dam, as the court of sessions 
shall order. 

And wdiereas, in some counties within this province, the justices of the 
court of sessions have refused to admit any application from the owner or 
occupant of any mill or mill-dam, by reason that such application has not 
been made at the court next immediately following the publication of the 
last recited act : 

Be it further enacted, That the several courts of sessions within this 
province be, and hereby are impowered and directed to admit, proceed and 
determine upon any such application at any court at any time held for the 
county, and all such proceedings shall be deemed as valid to all intents and 
purposes as if they had been acted upon at the court next immediately fol- 
lowing the publication of said act. 

And wiiereas, in many rivers and streams within this province, neither 
shad, salmon nor alewives usually swim, or would pass up such river or 
stream, altho' a passage-way was made and kept open through the several 
dams built across such rivers or streams, and the advantage of other fish 
that pass up such rivers or streams, is not equal to the damage that may 
arise by keeping open a passage-way through such dams : 

Be it enacted, That no owner or occupant of any mill-dam or dams built 

or to be built within this province, shall be liable to any penalty for not 

making or keeping open a passage-way through such dam or dams, except 

those dams only which are built across such rivers or streams where either 

2 



10 INLAND FISHERIES. 

of the aforementioned fish, viz., salmon, shad or alewivcs usually swim 
or pass ; any former law, usage or custom, to the contrar}- notwithstanding. 

Provided, ahcmjs, That it shall be in the power of any person at any time, 
to make application to the court of sessions, setting forth that the passage 
of other fish up such rivers or streams, is of such advantage as to render a 
passage-way through any dam or dams necessary, and the justices of the 
oourt of sessions are impowered on such application to appoint a commit- 
tee to repair to such dam or dams, and upon such committee's reporting 
that a passage-way or ways for the fish is necessary, the dimensions thereof, 
and the time for keeping it open, and upon such report's being accepted, the 
owner or occupant of such dam or dams,. shall be as fully obliged to make 
and keep open such passage-way or ways as if shad, salmon or alewives 
usually passed up such river or stream. 

And whereas, the mill-dam in the town of TVatertown, referred to in the 
aforesaid act of the fifteenth of his present majesty, has not been subjected 
in like manner with the other mill-dams within this province : 

Be it therefore enacted, That if any person or persons whatsoever, shall 
cause the dam of said mill to be raised, so as to prevent the passage of the 
fish over the same, at any time between the breaking up of the ice in the 
winter or spring, and the first day of May annually, and in any year here- 
after, without the express leave or consent of the selectmen of the towns 
of Watertown and Newtown, every person so offending, shall forfeit and 
pay the sum of five pounds for each offence, to be recovered in any court 
of record proper to try the same, and for the use of him or them that shall 
inform and sue therefor. 



SPECIAL LAWS. 

1781. 

An Act more effectually to prevent the Destruction of Alewives in their passage up the 
Rivers and Streams in the Towns of Salem and Danvers. 

Whereas it is necessary for the preservation of the fish called alewives, 
in their passage up the rivers and streams in the towns of Salem and 
Danvers, into the ponds at the head of those streams, that the committees 
hereafter to be appointed in those towns, to see that the passage-ways for 
said fish be not obstructed, should have their respective jurisdiction 
enlarged, and further authority given them for the purjDOses aforesaid. 

(Vol. 1, page 5.) Sect. 1. That towns of Salem and Danvers shall be, and 
they are hereby respectively empowered and directed at their meetings in 
March annually, each town to choose three or more persons to see that the 
laws respecting the passage-ways for said fish be observed. And each person 
so chosen shall take an oath faithfully to discharge the duties required of him 
bylaw. And the committees of said towns shall meet together annually, 
on or before the tenth day of April, at such time and place as the person 
first chosen by the town of Salem shall appoint, to be by him duly notified. 
And the muj or part of the committees present at such meeting are hereby 
authorized and empowered to order the times, places and manner in which 
said fish may be taken within the limits of either of said towns, and also 
•the number any one person may be allowed to take on any one day. And 
the members of the committees aforesaid shall have joint and concuri'ent 



APPENDIX. 11 

jurisdiction in either of said towns ; and the doings of said committees, or 
either of them, or the members of either of them, shall have full power to 
act as such, in either of said towns. And in case either of said to\viis shall 
neglect to choose such committee, the committee chosen by the other town 
shall be as fully empowered as though such town had not neglected. And 
the said committees, or either of them (on neglect as aforesaid) shall have 
power to cause the whole natural course of the streams through which 
said fish pass to, in both the said towns, to be kept open and without 
obstructions, to remove any such as may be found therein, to make the 
passage-ways of such streams wider or deeper, if they find it necessary. 
And the said committees, or either of them, or any member thereof, shall 
have authority to go on the laud of any person through which any such 
river or stream runs, or on which such land may be bounded, for those 
purposes, without being considered as trespassers. And any person who 
shall molest or hinder said committees, or either of them, or any member 
thereof, in the execution of the business of his or their office or offices, or 
shall obstruct any passage-way in such river or stream, otherwise than may 
be allowed by such committees or committee, he or she shall forfeit and 
pay a sum not exceeding fifty pounds, nor less than ten pounds. 

Sect. 2. Be it further enacted, That the said committees, or the major 
part of them present at any meeting duly notified, being not less than three 
in number, shall be, and they are hereby authorized and empowered to open 
any dam or sluice-head of any mill erected or that may be erected on or 
over any such river or stream, at the expense of the owner or owners of 
such dam or sluice, provided such owner or owners shall neglect to open 
the same, when thereto required by said committees or such major part of 
them as aforesaid ; and the dam or sluice so opened shall continue open to 
such depth and width as the conunittees or said major part may judge 
necessary, from the tenth day of April to the tenth day of June in every 
year. And in case any person or persons shall obstruct the passage-way 
allowed or ordered by said committees, or such major part of them, in any 
dam or sluice, each person so off"ending shall forfeit and pay a sum not 
exceeding fifty pounds, nor less than ten pounds. 

Sect. 3. Be it further enacted, That the owner or owners of any tide-mill 
erected, or that may hereafter Idc erected on any such river, shall keep a 
sluice-gate hoisted, or passage-way open, of three feet in width and two 
feet high, three hours at least before high water in each tide, from the said 
tenth day of April to the tenth day of June annually, on penalty of forfeit- 
ing for each tide that it shall not be hoisted or the passage-way opened, a 
sum not exceeding three pounds, nor less than five shillings. And the 
bottom of the passage-way so opened shall be as low as the said committees, 
or the major part as aforesaid, shall judge necessary. 

Sect. 4. Be it further enacted, That if any person or persons shall take 
any of said fish, on any day, or in any place, or in any manner, or in greater 
numbers than shall be allowed by said committees as aforesaid, each person 
so oftending shall forfeit and pa}^ a sum not exceeding forty shillings, nor 
less than five shillings ; and no seines shall at any time be made use of to 
take said fish, nor shall they be taken in any manner more than three dajs 
in any one week. 

Sect. 5. Be it further enacted. That if the committees aforesaid, or 
either of them, or any member thereof, shall detect any person or persons 



12 INLAND FISHERIES. 

attempting to take any of said fish on any day, at any place, in any manner, 
or in a greater quantity, otherwise tlian is allowed by said committees, and 
shall find fish with such person or persons, such person or persons shall be 
doomed to have taken said fish, and be subject to the penalties of this act 
accordingly. 

Sect. G. Be it further enacted., That all the penalties incurred by the 
breach of this act, may be sued for and recovered in any court of record 
in the county of Essex proper to try the same. And all sums as recovered 
as forfeited by this act, shall be appropriated, one moiety thereof to the 
prosecutors and the other moiety equally divided between the said towns 
of Salem and Dauvers. And no person, by reason of his being one of 
either of the committees aforesaid, shall be thereby disqualified from being 
a witness in any prosecution for breach of this act. — [February 19, 1781. 



An Act to provide more effectually for the Preserration of the Fish called Alewives, in 
the Streams runniug into Merrimack Eirer, within the Town of Andover. 

[Made perpetual March 7, 179T. Another Act but not repfcaUng this one, March 9, 1792. This 
limited to four years, but extended afterwards.] (See 1765.) 

"Whereas it is found that the laws already made are not sufficient to pre- 
vent the destruction of the fisli called alewives, in the streams within the 
town of Andover, w^hich run into Merrimack Eiver : 

(Page 10.) Sect. 1. That an act made in the year of our Lord one 
thousand seven hundred and fifty-five, entitled " An Act for preventing the 
unnecessary destruction of Alewives and other fish within this Province," 
be, and it is hereby extended to the streams herein before mentioned. And 
the selectmen of the town of Andover are hereby empowered to determine 
what number of barrels of said fish may be caught for market, and to let out 
the same in manner as is in said act prescribed, at any time in the months 
of April and May annually, as well as in the mouth of March therein 
specified. 

Sect. 2. Be it further enacted, That if any person shall catch, or shall 
attempt to catch, any of the before mentioned fish, in any part of the streams 
herein before recited, at any time between the hours in the evening and five 
in the morning, every person so ofi"ending shall forfeit the sum of not less 
than twenty shillings, nor more than three pounds, for every ofience. And 
the oath of any officer chosen at the annual meeting in March to see that 
the passage-ways for fish are kept open, testifying any fact that may be 
considered as a violation of this or any former act of the General Court 
made for the preservation of fish, shall be received as sufficient evidence 
of the same. 

Sect. 3. Be it further enacted, That each and every of the officers afore- 
said be, and he is hereby cmpow^ered to make search for, and to seize any 
parcel of said fish which he has reason to suspect were taken at any time or 
place, or in any w^ay by law prohibited. And if any such officer shall have 
reason to suspect that any of said fish so taken are secreted under lock, or 
in anj^ other way, he is hereby empowered in obedience to a warrant (which 
any justice of the peace in the same county is empowered to grant), on ap- 
plication therefor from such officer, to break open such lock or other ob- 
struction, in the day-time, and having seized such fish, to take them into his 
custody ; and the same officer shall give public notice of such seizure, by 



APPENDIX. 13 

posting an advertisement of the same at the public house nearest to the 
place where such seizure was made ; and if no person shall appear to said 
officer to claim said fish within twenty-four hours after posting said adver- 
tisement, such fish, and any cask in which the}^ may be packed, shall be for- 
feited. And if any person shall appear as aforesaid, to claim said fish, then 
the said officer shall require the claimer to appear before some justice of 
the peace of the same county, who shall hear and determine the cause, 
except the value of the fish seized exceed forty shillings, in which case 
he shall require the said claimer or claimers to recognize, to appear before 
the next court of general sessions of the peace for the same county ; and 
if sufficient evidence be not ofi'ered to satisfy the justice or the court, that 
the fish so seized were taken at some other time and place, and for some 
other purpose than by law is prohibited, then the said fish, and any cask in 
which they may be packed, shall be forfeited ; and all fish that may be for- 
feited iu consequence of this act, shall be sold by the officer who seized 
them; and all forfeitures in consequence of this act, after paying charges, 
shall enure one-half to the said officer, and the other half to the poor of the 
town of Andover. 

Sect. 4. Be it further enacted, That the officers before mentioned be, and 
they hereby are empowered to require suitable aid to enable them to exe- 
cute their office ; and any person who shall refuse or neglect to give aid 
when thereto required, as herein provided, he shall, on conviction thereof 
before any justice of the peace of the same county , forfeit the sum of three 
pounds. 

This act to continue and be in force for the space of four years from the 
first day of next November, and no longer. 

This act passed May 8, 1781. 

1786. 

An Act to prevent the Destruction of Salmon, Shad and Alewives, and other Fish in the 
Agga\yam or Westfield River.* 

Sect. 1. (Page J26.) That from and after the first day of March next, no 
person or persons be allowed to catch any salmon, shad, or alewives with 
seines, nets, pots, or in any other way, in any part of said river, within twof 
miles of the entrance thereof into Connecticut Elver, nor in Connecticut 
Eiver within half a mile south, or forty rods north of the mouth, or entrance 
of said Agawam into Connecticut Eiver ; and no person or persons shall 
catch any salmon, shad or alewives, in any other part of said Agawam Eiver, 
at any other time, than between sunset on Monday evening, and sunset on 
Thursday evening in each week ; and if any person or persons shall pre- 
sume to catch any fish iu the said rivers, contrary to the true intent of this 
act, he or they so ofi"ending, shall for each ofience, forfeit and pay a fine of 
four pounds ; and the seine, net or machine, used in catching said fish, shall 
be forfeited. 

Sect. 2. Be it further enacted, That all wears, fences, and other incum- 
brances now erected, or that shall hereafter be erected, in any part of the 
said Agawam Eiver, so as to stop the free course or passage of the said fish 
up the said river, shall be deemed common nuisance, and as such shall be 
pulled down and demolished -, and any person or persons that shall hereaf- 

* Altered as to Connecticut Kiver, March 26, 1788. 
t Eeduced to one mile by Act March 8, 1796. 



14 INLAND FISHERIES. 

ter erect any such wears, fences or other incumbrance, or shall contmue 
such already erected, on conviction thereof, shall forfeit and pay the sum of 
three pounds. 

Sect. 3. Be it further enacted, That all fines and forfeitures incurred by 
any breach of this act, shall and may be recovered by action or informa- 
tion before any justice of the peace within the county where such oflfence 
shall be committed ; one half of such fines shall enure to hinj or them who 
shall sue or prosecute for the same, and the other half to the poor of the 
town where the ofi'cuce shall be committed. 

This act passed June 27, 1786. 

An Act to prevent Uie Destruction, and to regulate the Catching of the Fish called Ale- 
wives, in their passage up the Eivers and Streams in the Town of Harwich, in the 
County of Barnstable. 

[Additioual Acts, 1813, ch. 57, 115; 1824, oh. 107; 1844, ch. 67.] 

(Page 166.) Sect. 1. That the town of Harwich shall be and hereby 
are empowered and directed, at their meeting for the choice of town offi- 
cers in March or April annually, to choose three or mor« persons, being 
freeholders in the said town, to see that this act be duly observed; and 
each person so chosen shall be sworn faithfully to discharge the duties re- 
quired of him by this act ; and the said committee shall meet together 
annually, on or before the twentieth day of April, at such time and place as 
they, or a majority of them, shall appoint, and the major part of the com- 
mittee present at such meeting, are hereby authorized and empowered to 
order the times places and manner in which the said fish may be taken ; 
and the said committee, or a majority of them, are hereby fully authorized 
and empowered to cause the natural course of the streams through which 
the said fish pass, to be kept open and- without obstruction, to remove any 
such as may be found therein, and to make the said passage-ways wider or 
deeper if they shall judge it necessary ; and the said committee or either 
of them, paying a reasonable consideration therefor if demanded, shall 
have authority for those purposes to go on the land or meadow of any per- 
son through w^hich said streams run, without being considered as trespass- 
ers; and any person w^ho shall molest or hinder the said committee or 
either of them in the execution of the business of his or their office, or 
shall obstruct any passage-way in the said rivers or streams, otherwise than 
may be allowed by the said committee, he or they shall forfeit and pay a 
fine for every such ofi'ence, not exceeding forty shillings, nor less than 
twenty shillings. 

Sect. 2. Be it further enacted, That the said committee, or the major 
part of them present at any meeting duly notified, being not less than three 
in number, shall be and hereby are authorized and empowered, to open or 
cause to be opened any dam or sluice of any other dam now erected, or that 
may be hereafter erected on, or over any of the said rivers or streams 
(between where such rivers or streams empty themselves into the sea at 
low water, and the ponds in which the said fish usually cast their spawns) 
at the expense of the owner or oAvners of such dam or sluice : provided 
such owner or OAvners shall neglect to open the same when thereto requii'ed 
by the said committee or the major part of them, immediately after being 



APPENDIX. 15 

thus required so to do; aud the dam or sluice so opened shall continue 
open in every year, to such depth and width, and for such term of time be- 
tween the fifteenth day of April and the tenth day of June, as the major 
part of the said committee shall judge necessary ; and if any person or per- 
sons shall obstruct the said passage-ways allowed or ordered by the said 
committee, or the major part of them, in any dam or sluice, such person so 
offending shall on conviction before any justice of the peace in the county 
of Barnstable, pay a fine for every such offence not exceeding forty shil- 
lings, nor less than twenty shillings, and the said committee shall cause 
every such obstruction to be forthwith removed. 

Sect. 3. Be it further enacted, That if any person or persons shall take 
any of the said fish in the rivers, streams or ponds aforesaid, before they 
shall have cast their spawns, at any time, in any place, or in any manner 
other than shall be allowed by the said committee as aforesaid, each person 
so offending, for each and every such offence shall, on conviction, as afore- 
said pay a fine not exceeding twenty shillings, nor less than five shillings, 
if the quantity of fish so taken is less than one barrel ; but if the ciuantity 
so taken shall be one barrel or more, such person or persons so offending 
shall forfeit and pay for each and every barrel of fish so taken, the sum of 
twenty shillings. 

Sect. 4. Be it further enacted, That if the committee aforesaid, or either 
of them, shall detect any person or persons in attempting to take any of 
the said fish at any time, or in any place, or in any manner otherwise than 
is allowed by the said committee, or shall find such fish with such person 
or persons, such person or persons shall be deemed to have taken the said 
fish unlawfully, and shall be subject to the penalties of this act accordingly, 
unless such person or persons can make it appear on trial, that they came 
by the said fish in some other way. 

Sect. 5. Be it further enacted, That the committee to be chosen as 
aforesaid, or the major part of them, shall determine what days in the 
week the said fish shall be taken, also on the certain parts of the said 
rivers and streams where the said fish may be taken, to be particularly 
bounded or described, so that the said places may be easily known; and 
shall notify the inhabitants thereof, t)y posting up notifications in several 
public places in the said town of Harwich, within ten days after their being 
chosen as aforesaid. 

Sect. 6. Be it further enacted, That all penalties incurred by any breach 
of this act, shall be recovered by complaint before a justice of the peace, 
in the county of Barnstable, where the said penalty doth not exceed forty 
shillings, allowing an appeal to the court of general sessions of the peace 
in the county aforesaid ; and where the penalty prosecuted for shall exceed 
the sum of forty shillings, it may be sued for and recovered in any court in 
the county of Barnstable proper to try the same, and all sums recovered as 
forfeited by this act, shall be for the support of the poor in the town of 
Harwich ; and no person, by reason of his being one of the said committee, 
or an inhabitant of the said town, shall thereby be disqualified from being 
a witness in any prosecution for breach of this act. 

Sect. 7. Be it further enacted. That it shall be the duty of the committee 
aforesaid, to take care that a sufficient passage-way be kept open annually 
for the young alewives to pass from the ponds to the sea.— [July 4, 1787. 



16 INLAND FISHERIES. 



1-788. 

An Act for the Preservation of the Fish called Alewives in Mattapoiset River, in Rochester, 
in tlie County of Plymouth, and for the regulating the taking the said Fish, in the 
said River. 

[1789, p. 247; 1791, p. 290; 1803, p. 91; 1810, ch. 60; 1814, ch. 99; 1617, oh. 136.] 

(Page 180.) "Whereas the law which was heretofore made for the preser- 
Tatioii of the fish called alewives, in ^Mattapoiset Eiver, iu the town of 
Eochester, and for regulating the taking the said fish, in the said river, 
has been found insufficient to answer the said purposes : 

Sect. 1. That the owner or owners of each and eveiy mill-dam on the 
said river, shall make, provide and continue a sluice-way of three feet wide, 
and eight inches deep, for the said fish to pass their respective dams, as 
low as the said selectmen of the said town of Rochester shall judge con- 
venient for the said fish to pass in. And the selectmen of the said town 
of Rochester are hereby authorized, on the second Monday of April annually, 
to open the said sluice-ways which, when opened bj^ them, shall remain 
open until the twentieth day of ]\Iay annually ;. and the owner or owners of 
any dam on the said river who shall neglect or refuse to make, provide and 
continue a sluice-way as aforesaid, shall shut or obstruct the same during 
the term the said sluice-way is to be kept open as aforesaid, shall forfeit and 
pay the sum of forty pounds for each ofience. 

Sect. 2. Be it further enacted, That the said town of Rochester, at their 
annual meeting for the choice of town officers, in the months of March or 
April annually, are hereby authorized to choose a committee consisting of 
not more than twelve, nor less than two suitable discreet persons, for 
inspectors of the said river, whose duty it shall be, within four days after 
their appointment, to post up in four public places iu the said town nearest 
the said river, a notification under their hands, or the major part of them, 
pointing out the times when, and the places where the said fish may be 
taken in the said river ; and if any person shall pull down or deface such 
notification, he or she shall for each offence forfeit and pay ten shillings ; 
and if such committee shall neglect or refuse to post up such notification 
within the said term of four days, suth committee shall forfeit and pay ten 
shillings ; and any person who shall presume to take any of the said fish in 
the said river, except at the times and places appointed by the said com- 
mittee as aforesaid, shall forfeit and pay three pounds for each ofience. 

Sect. 3. Be it furtlier enacted, That if any person or persons shall make 
any wears, or any other obstruction, to hinder the passage of the said fish 
up the said river, each person so offending shall forfeit and pay the sum of 
five pounds ; and any person who shall take or catch any of the said fish in 
said river, with any other instrument than a dip-net, shall forfeit and pay 
four pounds for each offence. 

Sect. 4. Be it further enacted, That if any person shall set or draw any 
seine, drag-net, or marsh-net in the said river, or within the following 
bounds of the harbor adjoining it, viz. : beginning at the south- westwardly 
end of the inland, owned by the Rev. Mr. La Barron, and from thence to 
the mouth of the creek which runs out of Barlow's Pond (so called), from 
and after the tenth day of April to the twentieth day of IMay annually, each 
person so offending shall forfeit and pay ten pounds. 



APPENDIX, 17 

Sect. 5. Be it further enacted, That all the forfeitures incntioucd in this 
act shall accrue to the said town of Kochester, to be recovered by the 
treasurer of the said town in an action of debt in any court proper to try 
the same ; and no person shall be considered as disqualified from giving 
evidence in any such action on account of his living In or being an inhabi- 
tant of the said town of Rochester. 

Sect. 6. Be it further enacted, That the agreement made and entered 
into between the said to'vvn of Rochester and the owners of the lower dam, 
on the said river, with regard to the premises, shall be good and valid in 
law. — [March 1, 1788. 

Ax Act to prevent the Destruction of Fish called Shad and Alewives, in Ten and Three- 
Miles Kivers, in the County of Bristol 

[Repealed as regards Three-Miles River, Feb. 11, 1791.] 

(Page 183.) Whereas it is necessary for the preservation of the fish 
called alewives, in their passage up the rivers, called and known by the 
name of Ten-Mile and Three-Mile River, in the county of Bristol, that 
some further provision should be made for the said purpose : 

Sect. 1. Be it enacted. That the several towns through which the said Ten- 
Mile and Three-Mile River run, shall be, and they are hereby empowered 
and directed, in the month of March or April annually, to choose three or 
more persons in each town respectively, being freeholders within the same, 
as a committee, who shall take an oath to the faitliful discharge of his or 
their duty; and the said committee, or the major part of them, shall have 
power to cause the natural course of the said streams through which the 
said fish pass, to be kept open, and without obstruction, and to remove all 
such obstructions as may be found therein, and to make the passage-ways 
wider or deeper if they shall find it necessary ; and the committee, or a 
major part of them, shall have authority for such purposes, to go on the 
land of any person through which the said Ten and Three-Mile Rivers run, 
without being considered as a trespasser or trespassers ; and any person 
who shall hinder the said committee, or either of them, in the execution 
of the business of his or their ofiice, or who shall obstruct any passage- 
way in the said rivers, otherwise than may be allowed by the said com- 
mittee, he or they shall forfeit and pay a fine not exceeding the sum of 
fifteen pounds, nor less than five pounds. 

Sect. 2. Be it further enacted, That the said committee, or a major part 
of them, at any meeting by them duly notified, shall be and hereby are 
authorized and empowered to open any dam or sluice-waj^ of any mill 
erected, or that may be erected on, over or across the said rivers, at the 
expense of the owner or owners of such dam, provided such owner or 
owners shall neglect to open the same when they are reqired by said com- 
mittee; and the said dam or dams, or sluice-way or Avays, so opened, shall 
continue open to such width and depth, and for such length of time 
betwixt the first day of April =and the last day of May annually, as the 
major part of the said committee shall judge necessary; and in case any 
person or persons shall be found to obstruct the passage-ways allowed or 
ordered by the said committee in any dam or sluice, such person or persons 
so offending shall forfeit and pay a fine not exceeding the sum of ten pounds, 
nor less than five pounds. 

3 



18 INLAND FISHERIES. 

Sect. 3. Be it farther enated, That all penalties incurred by a breach of 
this act may be sued for and recovered in any court in the county of 
Bristol proper to try the same ; and all sums so recovered or forfeited by a 
breach of this act, shall be appropriated, one moiety thereof to the prose- 
cutor or prosecutors, and the other moiety thereof to the use of the poor 
in such town where the offence is committed ; and no person, by reason of 
his being one of the said committee or an inhabitant of either of said 
towns, shall thereby be disqualified from being a witness in any prosecution 
for a breach of this act. — [March 10, 1788. 

An Act for altering a certain clause in an Act entitled, " An Act to prevent the destruc- 
tion of Salmon, Shad and Alewives, and other Fish in Agawam or VVestfield Kiver " 

[1786, p. 126.] 

(Page 188.) Whereas by the said act no person or persons are allowed 
to catch any salmon, shad or alewives, with seines, nets, pots, or in any 
other way, within two miles of the entrance of the said river into Con- 
necticut Eiver,nor in Connecticut Elver within half a mile south or forty rods 
north of the mouth or entrance of the said Agawam into Connecticut Elver : 

Sect. 1. Be it enacted, That the clause in the said act respecting catching 
fish in Connecticut Elver be, and the same is hereby so far altered and repealed 
as that any person or persons may catch fish in Connecticut Elver with seines, 
nets, pots, or in any other way or place, excepting within one hundred rods 
directly south of the entrance of the said Agawam into Connecticut Elver ; 
anything in the said act to the contrary notwithstanding. — [March 26, 1788. 

An Act to prevent the Destruction of Alewives and other Fish in Ipswich River, and to 
encourage the increase of the same. 

LRepeals alllaws relating to fish passing up Ipswich River. 1783, p. 191 ; 1793, p. 451 -r. 1797, p. 
128; 1804, p.431j 1805, p. 524; 1804, p. 1. ; 1810, oh. 117; 1812, ch. 127; 1814. eh. 22.] 

(Page 191.) Sect. 1. Be it enacted, That the owner or owners, occupier 
or occupiers of the dam across Ipswich Elver commonly called Warner's 
mill-dam, and also the owner or owners, occupier or occupiers of the dam 
of Farley's mill, so called, be and they are hereby required, henceforward, 
at their own cost and charge, in proportion to their several interests, to 
make and keep open a passage for the fish through their respective dams, 
from the twentieth day of April to the thirteenth day of June annually ; and 
that the said passages be within four feet of the northerly end of each of 
the said dams, five feet wide, to enter from the under side of the cap-piece, 
wiiich cap-piece shall be level with the said dam, and as low as the upper 
side of the mud-sills of the same ; and that during the said time the bottom 
of the said passage be covered with flat stones or gravel in such manner as 
that the bottom be not raised higher than the sills ; and that nothing shall 
be kept, put or placed on the upper side of either of said dams, nor anything 
put or placed below either of them, within six feet of the sluice-way on the 
southerly side of them, except a brace on the southerly side of each of the 
said sluice-ways, to guard the said cap-pieces, on penalty that the owner or 
owners, occupier or occupiers of either of the aforesaid mills neglecting to 
observe the directions of this act in any of the instances before mentioned, 
shall for every such offence forfeit the sum of twenty pounds, to be xecov- 



APPENDIX. 19 

ered of them, or either of them, by action of debt in any court of record 
proper to try the same, in the county where the offence shall be committed, 
to be disposed of as follows, viz. : one moiety to him who shall sue for the 
same ; the other moiety to the poor of the town where the offence shall be 
committed. 

Sect. 2. Be it further enacted, That the owner or owners, occupier or 
occupiers of Dodge's Mills, so called, at the Little Falls on the said river, 
be and they are hereby required to keep open the passage over the said 
falls, from the grist-mill to a large rock in the angle of the falls or dam, down 
to the mud-sill, from the twentieth day of April to the thirteenth day of June 
annually, on penalty that the owner or owners, occupier or occupiers of the 
aforesaid mills neglecting to observe the directions of this aQ.t, shall for 
every such offence forfeit and pay the sum of twenty pounds, to be recov- 
ered of them, or either of them, by action of debt, in.any court of record 
within the same county proper to try the same, one moiety thereof to him 
who shall sue for the same, the other moiety to the poor of the town where 
the offence shall be committed. 

Sect. 3. Be it further enacted. That the sluices or passages through or by 
all other mill-dams now erected, or that shall hereafter be erected upon said 
river, or by any stream or streams running from any natural pond into 
the same, provided the said mill-dam be below the same ponds, shall be 
open, and kept open; and that the owners or owners, occupier or occupiers 
of such miU-dam, shall make, maintain and keep open the said sluices or 
passages at their own cost and charge, in the same manner as heretofore in 
this act is provided with regard to the passages through "Warner's and Far- 
ley's mill-dam, and under the said penalty for every neglect, to be recovered 
and disposed of in the same manner. 

Sect. 4. Be it further enacted, That every person who shall, after the 
twentieth day of April, which will be in the year of our Lord one thousand 
seven hundred and eighty-eight, presume to take any fish of any kind in 
the said river or its branches, or any of the ponds emptying themselves 
into the same, with seines or drag-nets of any kind, shall forfeit for every 
such offence, the sum of twenty pounds, to be recovered in any court of 
record proper to try the same, one moiety to him who shall sue for the 
same, the other moiety to the poor of the town where the offence is com- 
mitted. 

And whereas it has been found by experience, that saw-dust floating in 
streams where fish pass, obstruct their passage : 

Sect. 5. Be it further enacted, That none of the saw-mills on said river, 
or any of the streams running from natural ponds into the said river, shall 
be suffered to go between the last day of April and the first day of June an- 
nually, for cutting any wood or timber ; and every owner or occupier of 
such mill, who within the term aforesaid shall use or suffer the same to be 
used or employed for such purposes aforesaid, shall incur the penalty of 
twenty pounds, to be recovered and disposed of in the same manner as 
aforesaid. 

Sect. 6. Be it further enacted. That from and after the passing this act, 
every town bordering on Ipswich River, where alewives and other fish go 
up to cast their spawn, shall, at their meeting in March or April, for the 
choice of town officers annually, choose at least three fit and suitable per- 



?0 INLAND FISHERIES. 

sons, whose duty it shall be, jointly or severally, to see that this act be 
duly observed, and to inform against any person or persons that shall 
offend against the same ; and all persons so chosen, shall be sworn to the 
faithful discharge of their duty in such oflSce ; and if any person chosen as 
aforesaid, shall refuse or neglect to be sworn, after due notice given, he 
shall forfeit and pay the sum of forty shillings, for the use of the poor of 
the town to which he belongs, to be recovered by the treasurer of such 
town in any court proper to try the same ; and such town shall proceed to 
a new choice, and so toities qiioties. 

Sect. 7. Be it further enacted, That each and every person, who shall, from 
and after the twentieth day of April, to the thirteenth day of June annually, 
presume to take any of the said fish in the river aforesaid, or any of the 
streams running into the same, except on Monday, "Wednesday and Friday, 
in each week during the time limited by this act, and in that case, not to be 
taken within two rods of any of the sluices aforesaid, shall forfeit and pay 
for every such offence a sum not exceeding forty shillings, nor less than 
twenty shillings, to be recovered on complaint or information, one moiety 
to the prosecutor, the other moiety to the poor of the town where the 
offence is committed : and the said committee shall be admitted as witness 
or witnesses on the trial. 

Sect. 8. Be it further enacted, That all the laws heretofore made, relative 
to fish passing up Ipswich Eiver, and for regulating the taking of the said 
fish, be and they hereby are repealed and made null and void. — [March 28, 
1788. 

An Act to prevent the Destrnction, and regulate and limit the Catching of Fish in the 
Elvers and Streams in the Town of Westport, in the County of Bristol. 

(Page 197.) Sect. 1. Be it enacted, That no seine or net shall be drawn 
at any time of the year anjrwhere in the rivers within the said town of 
Westport, below the south end of an island called Lake's Island, striking a 
line of an east and west course from the south end of said island, or within 
half a mile from the entrance of the harbor of said town ; and that in the 
months of October and November, yearly, and every year, no seine or net 
shall be drawn any where in either of the rivers, arms or creeks within the 
said town; and if any person or persons, after the passing of this act, shaU 
presume to draw any seine or net at any place or time, which is not allowed 
as above mentioned and described, he or they so offending, shall forfeit and 
pay the sum of three pounds for each offence, to be recovered by action of 
debt in any court proper to try the same ; the one moiety thereof to him or 
them who shall sue for the same, and the other moiety to the use of the 
town of Westport ; and every such seine or net, with its appendages so 
drawn, shall be forfeited to the use of said town. 

Sect. 2. Be it further enacted, That the town of Westport shall be, and 
hereby are empowered and directed at their meeting for the choice of town 
officers in March or April, annually, to choose three or more suitable per- 
sons in the said town, to see that this act be duly observed ; and each 
person so chosen, shall be sworn faithfully to discharge the duties required 
of him, agreeably to this act.— [June 18, 1788. 



APPENDIX. 21 

Ayt Act for preventing the Destruction of Alewives in the town of WeUfleet, and regulating 

the Fishery of them La the said Town, 

CRepealed 1^6, ch. 56.J 

(Page 200.) Sect. 1. Be it enact-ed, Tliat it shall and may be lawful for 
the freeholders and other inhabitants of the town of WeMeet, qualified by 
law to vote in town affairs, at their annual meeting by law appointed for the 
choice of town officers, to choose a committee of three or more persons, 
being freeholders of said town, to inspect the said fishery of alewives, who 
shall be duly sworn to the faithful discharge of their duty; and the said 
committee shall have full authority and power to meet, agree and deter- 
mine upon rules and regulations respecting the taking the said fish, at what 
time, place or places the same shall be taken within the limits of the said 
town; and of the rules and regulations, agreed and determined upon by the 
said committee, or the major part of them, they shall cause fair copies to 
be posted up in three different parts of the said town, within fourteen days 
at the least, after their having been chosen as aforesaid, and shall also ^ 
marks or bounds in the place or places allowed for fishing. 

Sect. 2. Be it further enacted, That if any person or persons shall take 
any of the said fish in the rivers, streams or ponds, witliin the said town, at 
any other time or place than shall be allowed by the said commitree as 
aforesaid, each person so offending, for each and every such offence, shall on 
conviction thereof, pay a fine not exceeding twenty shillings, nor less than 
five shillings, if the quantity of fish so taken is less than one barrel ; but if 
the quantity so taken shall be one barrel or more, such person or persons so 
offending, shall forfeit and pay for each and every barrel of fish so taken, 
the sum of twenty shillings. 

Sect. 3. Be it further enacted. That if the committee aforesaid, or either 
of them, shall detect any person in attempting to take any of the said fish, at 
any time, or in any place other than is allowed by the said committee as 
aforesaid, or shall find such fish with such person or persons, he or they 
shall be deemed to have taken the fish unlawfully, and shall be subject to 
the penalties of this act, as before mentioned, unless such person or persons 
can make it appear on trial, that they came by the said fish in some other 
way. 

Sect. 4. Be it further enacted, That no person shall presume to take, 
catch, or haul on shore, any of the said fish within the limits of the said 
town, with any other nets than with scoop or dip nets, on pain and penalty 
of forfeiting for each and every oftence, a sum not exceeding forty shillings, 
nor less than thirty shillings. And the said committee shall, during the 
passing of the said fish up the rivers and streams within the said town, as 
well as during the return of the said fish, and of the passing of their fry 
from the poncls to the sea, cause all obstructions to their passage, whether 
by wears, fences, walls, or otherwise, to be removed, and may make wider 
or deeper the said passage-ways, when they shall judge it necessary, the 
said committee paying a reasonable consideration therefor, if demanded ; 
and shall have authority for those purposes, to go on the land or meadow of 
any person through which any of the said streams run, without being con- 
sidered as trespassers ; and any person who shall molest or hinder the said 
committee in the execution of their duty, or shall in any way or manner 
^ obstruct the passing of the said fish by wears, fences, walls, or otherways, 



22 INLAND FISHERIES. 

shall forfeit and pay s sum not exceeding forty shillings, nor less than thirty 

shillings. 

Sect. 5. Be it further enacted, That no inhabitant of any other town than 
the said town of Wellfleet, shall catch or take any of the said fish in any of 
the rivers, streams or ponds within the said town of Wellfleet, without 
leave had therefor in writing, of the said town of Wellfleet, or of their said 
committee. 

Sect. 6. Provided, nevertheless, That during the fishing season, any in- 
habitant of the neighbouring towns shall be supplied by the committee or 
some person by them appointed for that purpose, to the number of three 
hundred of the said fish, or any less quantity, if thereto requested, such in- 
habitant paying therefor at a rate not exceeding one shilling per hundred ; 
and in case of neglect or refusal to supply such inhabitant as aforesaid, 
upon application of the aggrieved person, to any justice within the county 
of Barnstable, not an inhabitant of Wellfleet, such justice may authorize 
and appoint some suitable person to catch and take the said fish, and supply 
the inhabitants of the neighbouring towns therewith, the person so ap- 
pointed to conform to the rules established by the said committee, respect- 
ing the time and place of taking the said fish, and to be allowed by the said 
justice, from the sale of the fish he shall so take, a reasonable sum for his 
time and trouble ; and if any overplus remain after being paid as aforesaid, 
the same shall be by him paid to the treasurer of the town of AVellfleet. 

Sect. 7. Be it further enacted, That all fines and forfeitures incurred by 
any breach of this act, may be sued for and recovered before any justice of 
the peace in the said county of Barnstable ; and all fines recovered for any 
breach of this act, shall enure, oue moiety thereof to the said tOAvn of 
Wellfleet, and the other moiety thereof to him or them that shall sue for 
and recover the same. And no person, by reason of his being one of the 
said committee or -an inhabitant of the town of Wellfleet, shall thereby be 
disqualified from being a witness in any prosecution for a breach of this 
act.— [June 19, 1788. 

1780. 

As Act to prevent the Destruction of Fish called Shad and Ale wives, in Mystic River, so 
called, within the towns of Cambridge, Charlestown and Medford, and for repealing 
all laws heretofore made for that purpose.* 

[An Act for continuing this Act and including Wobum and Malden,Feb. 27, 1794. Separate pro- 
vision for Medford, Feb. 11, 1803. Additional Act, 1820, ch. 67.] 

(Page 238.) Whereas the fishery in Mystic Eiver, in the county of Middle- 
sex, if properly regulated, will be of great public utility, as it serves to pro- 
mote the cod fishery, and is also of advantage to the particular towns 
through which the river runs, afi'ordiug, in some measure, subsistence and 
support to the inhabitants thereof, and it is, therefore, necessary to be pre- 
served : 

Sect. 1. Be it enacted. That the inhabitants of the towns of Cambridge, 
Charlestown and Medford, respectively, at a town meeting, to be held in the 
months of March or April, annually, at the time of choosing other town 
ofiicers in their respective towns, be and they hereby are authorized and 
dii'ected, to choose, for each of said towns, three suitabl^e persons, in their 

* Limited Jo five years. 



APPENDIX. 23 

respective towns, as a " Committee for the preservation of Fish," who shall 
be sworn to the faithful discharge of their duty ; and the said committee, or 
the major part of them, in their own town, shall have full power and 
authority to cause the natural course of the said river, and the streams run- 
ning into it, to be kept open and without obstruction, and to remove all 
such obstructions, as may be found therein ; and to make the passage-way 
wider or deeper, if they shall find it necessary. And the said committee, or 
a major part of them, in their respective towns, shall have authority for such 
purposes, to go on the land of any person which may border on said river 
or streams, without being considered as guilty of a trespass ; and to remove 
across such land any such obstructions, implements or tools, as may, in any 
way, impede, obstruct or hinder any fish from passing freely up and down 
said river or streams, otherwise than by this act is provided. And any person 
who shall hinder or obstruct said committee, or a majority of them, whether 
in crossing such laud, or in executing any part of the business by this act 
assigned them, shall forfeit and pay for every such oflfence, a sum not exceed- 
ing three pounds, nor less than twenty shillings, to be recovered in any 
court, proper to try the same. 

Sect. 2. Be it further enacted, That no shad or alewives shall be caught in 
any of the above mentioned towns, above Medford Bridge, in the said river 
or streams, or in Mystic Pond or Spy Pond, whether with a seine, drag-net, 
marsh-net, basket, or any other implement of that kind, or made to answer 
such purpose, except as is hereafter in this act provided. And every person 
ofiending herein, shall, upon due conviction, forfeit and pay the sum of 
three pounds, for every such ollence, and shall also forfeit the implements 
or tools used in committing the oflence. And no person shall, at any time, 
place any kind of obstruction in said river, streams or ponds, which may 
obstruct or hinder any shad or alewives from passing up or down the same. 
And no person shall be permitted, by disturbing the waters aforesaid, or by 
any other means, to restrain or interrupt any of those fish in their passage 
up and down said river and streams. And every person ofi'ending in either 
of these particulars, shall, upon conviction, forfeit and pay the smn of three 
pounds for every such offence ; and every wear, net, or other obstruction, 
matter or thing, placed or used for such purpose, shall also be forfeited, if 
found in any of the waters aforesaid ; and shall be disposed of b}- said com- 
mittee or a majority of them, for the same purpose as the other forfeitures 
are to be applied to by this act, so far as the proceeds of the sale shall not 
be necessary for the particular appropriations in this act. 

Sect. 3. Be it further enacted, That, in order to secure to said towns of 
Cambridge, Charlestown and Medford, their equal benefit from said fishery, 
the inhabitants of the town of Cambridge shall, within the limits of that 
town, have full right to catch with any kind of net, seine, or other :fishing 
implement, any shad or alewives, on Monday, Tuesday and Friday, in every 
week, from the first day of March to the last day of June inclusively ; and 
the inhabitants of Charlestown and Medford shall, in like manner, in theii 
respective towns, have full right to catch any shad or alewives, in the wa- 
ters aforesaid, on Monday, Wednesday and Friday, in every week included 
in said t^rm. 

Sect. 4. Be it further enacted, That any person, being an inhabitant of 
either of those towns, shall, each in his own town, in the river, streams 



U, INLAND FISHERIES. 

and ponds aforesaid, with -any kind of fishing implement, on those days only, 
which are, with respect, to each of said towns before mentioned, have the 
right of catching said fish, between sun-rising on said days before men- 
tioned, until sun-rising on the next day ; and no obstruction, instrument or 
tool, shall be set, placed or used, for the purpose of hindering or catching of 
the fish aforesaid, in the waters aforesaid, till the sun shall be risen on said 
days ; nor shall any such instrument be permitted to remain or be used in 
said river, streams or ponds, after the rising of the sun as afore-mentioned; 
and no such obstruction shall be allowed to be placed, used, or to remain 
in said river, streams or ponds, on any other days or times than is herein 
limited and prescribed ; under the same iDcnalties and forfeitures, to be in- 
curred by any and every person placing or using the same, as are provided 
by this act, to be forfeited and paid by persons catching said fish, except as 
this act provides. 

Sect. 5. Be it further enacted, That, if any inhabitant of any other town 
shall, at any time, take or hinder shad or alewives, within the limits of 
either of said towns. Without leave first obtained from the selectmen of 
the town in which he shall take or hinder those fish, or unless the person 
taking or hindering them, shall be immediately in the employ or service and 
laboring for the- benefits of some inhabitant of such town ; every person so 
ofi'ending, shall, upon a due conviction, forfeit and pay the same penalties and 
forfeitures, as by this act are provided against persons taking, obstructing 
or hindering said fish, at any other times than those particularly permitted. 

Sect. 6. Be it further enacted, That the said committee, or a majority 
of them, in their respective towns, shall have full authority to execute this 
act, so far as relates to seizing, removing, and selling any implements or 
tools, used for hindering, taking, disturbing or turning back the fish in said 
river, streams or ponds ; and in and after the execution of said trust, they 
shall not be considered as guilty of a trespass therein ; nor shall any action 
lie against them, or either of them, for any necessary damage done to the 
lands or fences of any person, in executing said trust ; but if the proceeds 
of the sale of said implements, or other materials, shall be found insufiicient 
to defray all the necessarj^ charges, and the reasonable fees of the com- 
mittee, not exceeding four shillings to each committee-man, for each day 
so spent by him, and all reasonable and necessary assistance ; then the re- 
mainder of such damages and costs shall be recovered in an action of debt, 
to be brought by the persons to be benefited by the same ; whether com- 
mittee-men, or persons owning lands or fences damaged, with all the costs 
of suit against the person committing the ofl'ence, in any court proper to 
try the same, within the county of Middlesex. And the said committee, or 
any other person, may sue for and recover, upon due and legal conviction, 
in any court proper to try the same, all penalties which shall arise, or be- 
come due in their respective towns, for any breach of this act, either upon 
action of debt, or upon indictment or information ; one-half of the penalty 
to accrue to the person recovering the same, the other half to be i^aid to 
the treasurer of the town where the ofi'euce was committed, for the use of 
the poor of the same town. 

Sect. 7. Be it further enacted. That all fines and penalties that may be 
incurred for a breach of this act, not exceeding four pounds, may be sued 
for and recovered before any justice of the peace for the county of Middle- 



APPENDIX. 25 

sex, saving the right of appeal, to auy person aggrieved by the sentence of 
said justice, to the court of general sessions of the peace, next to be holdeu 
for said county. 

This act to be in force for the space of five years, from the first day of 
March next, and no longer.— [February 16, 1789. 



An Act in addition to an Act passed the last year, entitled "An Act for the preservation 
of the Fish called Alewives, in Mattepoiset River, in Rochester, in the County of Plym- 
outh, and for regulating the taking the said Fish in the said Kiver." 

[March 1, 1788. Additional Acts, 1791, p. 290 ; 1803, p. 91 ; 1810. ch. 60 ; 1814, ch. 99 ; 1817, eh. 136.] 

(Page 247.) Whereas it is provided in and by the said act, that the owner 
or owners of each and every mill-dam on said river, shall make, provide 
and continue a sluice-way of three feet wide and eight inches deep, for the 
said fish to pass their respective dams, as low as the selectmen of the said 
Rochester shall judge convenient for the said fish to pass in; and the select- 
men of the said town of Rochester be authorized to open said sluice-ways 
on the second Monday of April, annually, in order to let the -said fish pass 
the said dams. And whereas it is foimd, by experience, that the keeping 
of said sluice-ways shut till the second Monday in April, annually, greatly 
impedes the course of said fish : 

Sect. 1 Be it enacted, That from and after the passing this act, the se- 
lectmen of the said town of Rochester are hereby authorized, on any day 
between the last day of March and the second Monday of April, annually, 
to open the said sluice-ways, which, when opened by them, shall remain 
open until the twentieth day of May, annually, under the same penalty as is 
provided in said act, for said sluice-ways being stopped between the second 
Monday of April and the twentieth day of May. 

Sect. 2. Be it further enacted, That^ if any person shall presume to take 
any of said fish in the brook, leading out of Little Long Pond (so-called) 
into Sniptuet Pond, such person shall be subject to the same penalty as is 
provided in said act for taking fish in said Mattepoiset River at a time not 
allowed by the committee of said town to take said fish in said river. 
And whereas there is no provision made in said act to prevent persons 
taking said fish in said river, or by seines in a part of the harbor therein 
described, before the tenth day of April, annually : 

Sect. 3. Be it further enacted, That if any person shall presume to take 
any of said fish in said river, or to stretch any seine in that part of the har- 
bor into which said river empties which is described in said act, between 
the last day of March and the tenth day of April, annually, such person or 
persons shaU be subject to the same penalty as is provided by said act for 
doing the same between the tenth day of April and the twentieth day of 
May. 

•Sect. 4. Be it further enacted. That the inhabitants of the said town of 
Rochester, at a legal town-meeting warned for that purpose, may sell, or 
dispose of, on such terms and in such manner as they may think proper, the 
exclusive right of taking said fish in said river, for any number of days, not 
exceeding three in each week, no one sale to be for a longer term than one 
year. And, whereas, by reason of the swamp and thickets through which 
4 



26 INLAND FISHERIES. 

said river nms, it may be very difficult to procure proof of the violations of 
this act, and the act to which this is an addition : Therefore, 

Sect. 5. Be it enacted, That if the committee of said town, or any mem- 
ber thereof, shall detect any person attempting to take said fish, on any day, 
in any place or in any manner other than is allowed by said committee, and 
said person has any of said fish in his or her custody, or if the said com- 
mittee, or other member of said town, shall find any such fish in any person's 
custody, near to, or coming from said river, such person shall be deemed 
to have taken such fish illegally, and shall be subject to the penalties pro- 
vided by this act, and the act to which this is an addition, unless such 
person can give a satisfactory account how he or she came by such fi<h. 

Sect. 6. Be it further enacted, That any member of the committee of 
said town of Rochester, appointed in consequence of said act, msy bring 
forward an action of debt, for the recovery of the penalty or penalties pro- 
vided in said act, or in this act, in his own name, and the name of the said 
to-wn of Rochester, and shall be entitled to one-half the sum or sums so re- 
covered, anything in said act to the contrary notwithstanding. — [June 15, 
1789. 

An Act for reviving and continuing Sundry Laws that are expired or near expiring. 

(Page 249.) "Whereas, the several acts hereafter mentioned, which are 
now expired, or near expiring, hav-e been found useful and beneficial, viz. : 
An Act made in the year of our Lord one thousand seven hundred and 
seventy-three, entitled " An Act for regulating the Ale wive fishery in the 
town of Halifax, in the county of Plymouth." 

An Act regulating the taking of the Fish called Ale'n-ivcs, in the Town Brook, Si) called, in 
the Town of Plymouth.* 

(Page 250.) Sect. 1. Be it enacted. That said fish may be taken bjetween 
the two grist-mills now standing on said brook, and shall not be taken in 
any other part thereof, and at such time or times only as a committee who 
may be appointed by said town, as is hereafter provided, may direct. 

Sect. 2. Be it further enacted. That the inhabitants of said town of Plym- 
outh, at their meeting for the choice of town officers in 3Iarch or April 
annually, be and they hereby are authorized and directed to appoint five or 
seven persons a committee to oversee the taking said fish as aforesaid, 
which committee shall distribute the said fish taken by them, or under their 
direction, as equally as circumstances will admit, to such of the inhabitants 
of said town as may apply for the same, and for the fish so supplied and de- 
livered the committee aforesaid shall demand and receive, of the person or 
persons applying therefor, payment at such rate or rates as the inhabitants 
of the said town at their annual meetiag in March or April may direct, ex- 
cepting of such poor persons as may be named in a list annually to be made 
out by the selectmen of said town, and who, in the opinion of the select- 
men, are unable to pay for the same, which list shall be given to the com- 
mittee, and the person or persons borne on the same shall be Supplied with 
such quantities of said fish, gratis, as the committee may think expedient. 

* Extended to Fresh Pond Brook, June 25, 1798. 



APPENDIX. 27 

And the committee aforesaid shall have such allowance for their services 
as the inhabitants of said town, at the time of appointing said committee, 
shall determine, and shall annually, in the month of September next follow- 
ing their appointment, exhibit their accounts to the selectmen of said 
town for settlement and allowance, and pay the balance remaining in their 
hands, if any, to the treasurer of the town of Plymouth, for the town's use. 

Sect. 3. Be it funher enacted^ That the said committee, or the major 
part of them be and are hereby authorized and empowered to open any 
dam, or the sluice of any mill or other water-works erected, or that may be 
erected on or over said brook, at the expense of the owner or owners of 
such dam or sluice, provided such o^vner or owners shall neglect to open 
the same when thereto required by said committee, or the major part of 
them as aforesaid ; and the dam or sluice that may be so opened, shall con- 
tinue open to such depth and width, and for so long a time, as the said com- 
mittee, or the major part of them may judge necessary; and if anj- person 
or persons shall obstruct the passage-ways allowed or ordered by said com- 
mittee, or the major part of them, in any dam or sluice-way, or shall ob- 
struct the passage of said fish in any part of said brook than is permitted 
by this act, such person or persons so offending, shall forfeit and pay a sum 
not exceeding fifty poimds, nor less than ten pounds. 

Sect. 4. Be it further enacted, That if any person or persons, other than 
the said committee, or such persons as shaU be by them employed shall 
take any of the said fish in the said brook, or any part of it, at any time, or 
by any ways or means whatsoever, each person so oflending shall forfeit 
and pay a sum not exceeding forty shillings, nor less than ten shillings, for 
every such offence. 

Sect. 5. Be it further enacted, That all penalties incurred by the breach 
of this act may be sued for and recovered by the ti-easurer of the town of 
Plymouth, for the time being, in any couit in the county of Plymouth proper 
to tiy the same ; and all sums so recovered shall be appropriated to the use 
of the said town; and in case xmy minor or minors shall offend against any 
part of this act, and thereby incur any or either of the penalties aforesaid, 
in all such cases the parents, master or guardians of such minor or minors 
shall be answerable therefor ; and in case of a prosecution of such minor 
or minors for any such ofience, the action shall be commenced against the 
parents, masters or guardians of such minor or minors, respectively, and 
judgment be rendered against my parent, master or guardian in such case, 
in the same manner as for his or their personal offence. 

Sect. 6. Be it further enacted., That no person by reason of being an in- 
habitant of said town, or one of said connnitt^e, shall be thereby disquali- 
fied from being a witness in any prosecution for a breach of this act. — [June 
20, 1789. 

1190. 

Ax Act empowering the To-s'n of Pembroke to regulate and order the taking and dispos- 
ing of the Fish called Alewives, within the limits of the said Town. 

[Repeals all laws heretofore made for regulating the Alewive fishery in the town of Pembroke, 
Additional Acts, 1792, p. 326; 1311, ch. 72; 1814, ch. 123; 9th section of this Act repe.".led, ch. 72, 
1811.] 

(Page 269.) TVhereas the town of Pembroke, in the county of Plymouth, 
hath been at considerable expense and charge in opening a passage for the 



28 INLAND FISHERIES. 

fish called alcwivcs, from the sea into the ponds called the Indian Ponds, 
being wholly within the bounds of the said town, it is but reasonable and 
just that the ordering of the taking of the said fish, and the disposition of 
them, when taken, should l>e wholly vested in the said town. And whereas, 
an act heretofore .made for that purpose has been found inadequate to the 
purposes thereby intended : 

Sect. 1. Be it enacted, That it shall and may be lawful for the inhabit- 
ants of the said town of Pembroke, at a meeting legally and regularly as- 
sembled for that purpose, from time to time, and at all times hereafter, to 
determine and order how, in what manner, by whom and at what place or 
places, time or times in the year, said fish may be taken within the town 
aforesaid, and shall cause a copy of such order, attested by the town clerk, to 
be posted up in some public place in said town, whereunto all persons shall 
conform with regard to the taking and disposing of said fish, on penalty that 
the ofi'ender against the same shall forfeit and pay a sum not exceeding three 
pounds, nor less than forty shillings, for each ofience, at the discretion of 
the justice before whom the same shall be tried. 

Sect. 2. Be it further enacted, That the inhabitants of the town of Pem- 
broke shall be, and hereby are, empowered and dii'ected annually to choose 
three or more persons, being freeholders in the said town, to see that this 
act be duly observ^ed, agreeably to the directions of said town ; and each 
person so chosen shall be sworn faithfully to discharge the duties required 
of him by this act ; and the said committee are hereby authorized and em- 
powered to cause the natural course of the stream, through which the said 
fish pass, to be kept open and without obstruction, and to remove any such 
as may be found therein ; and the said committee, or either of them, shall 
have authoritj', for those purposes, to go on the laud or meadow of any per- 
son through which such stream runs, without being considered as trespass- 
ers ; and any person who shall hinder or molest said committee, or either 
of them, in the execution of his or their office, or shall obstruct any pas- 
sage-way in said rivers or streams within the said town of Pembroke, other- 
wise than may be allowed of by the said town, he or they shall forfeit and 
pay a fine for every such ofience, not exceeding the sum of five pounds, nor 
less than three pounds. 

Sect. 3. Be it further enacted, That if the committee, or either of them, 
shall detect any person or persons in attempting to take any of the sfiid fi^h 
at any time, or in any place, or in anj^ manner, otherwise than is allowed by 
the said town, or shall find such fish with such person or persons, they shall 
be deemed to have taken the said fish unlawfully, and shall be subject to the 
penalties of this act accordinglj'-, unless such person or persons can make it 
appear on trial that they came by the said fish in some other way. 

Sect. 4. Be it further enacted, That the said committee be empowered, 
and are hereby empowered and authorized, to open the sluice-ways through 
any dam or dams that are or may be erected within the town of Pembroke, 
on the stream leading out of the great ponds, at the expense of the owner. 

Sect. 5. Be it further enacted, That no person shall be considered as dis- 
qualified from being a witness on any trial that vsxay be had pursuant to this 
act, on account of his belonging to or being an inhabitant of the said town 
of Pembroke. 

Sect. 6. Be it further enacted, That if any servant or minor shall be 



APPENDIX. 29 

found taking any of said fish in anywise contrary to this act, or contrary 
to the rules and orders of said town of Pembroke as aforesaid, the parents, 
masters or guardians of such minors or servants shall be liable for the 
fines and forfeitures incurred by a breach of this act, or the rules and 
orders of the town aforesaid. 

Sect. 7. Be it further enacted, That in case any poor or indigent person 
or persons shall be found taking any of the said fish contrary to this act, 
or contrary to the rules and orders of said town of Pembroke, it shall be 
lawful for the committee or overseers of said brook, chosen as aforesaid, 
to take from such poor or indigent person or persons their net or nets, 
with which they may bd found taking said fish, and detain them in their 
custody for the space of one month, or until they do appear and pay the 
fines and forfeitures arising by the breach of this act and the orders of the 
town aforesaid ; and in case the said poor person or persons do not appear 
and pay the fines and forfeitures as aforesaid, within one month as afore- 
said, the said net or nets shall be forfeited to and for the use of the poor 
of the said town of Pembroke. 

Sect. 8. Be it further enacted, That no person or persons, at any time- 
between the first day of April and the fifteenth day of June annually, shall 
enter the river commonly called and known by the name of Barker's liiver, 
above where said river adjoins to Indian Head River, so called, ^ith an 
intent to drive, seine or otherwise disturb the fish in said river where the 
tide ebbs and flows, on penalty of five pounds for each offence, to be 
recovered in manner hereafter mentioned. 

Sect. 9. Be it further enacted, That no person or persons shall presume 
to S€t, draw or cast any seine, drag or set-net, of any dimensions whatso- 
ever, in the North Eiver, so called, except on the Monday and Friday of 
each week, and that between the sun's rising and setting of each day; and 
that no seine, drag or set-net shall be set, drawn or cast in said river above 
what is commonly called and known by the name of the Third Herring 
Brook, or Smelt Brook. 

Sect. 10. Provided, nevertheless, That the inhabitants of the several towns 
adjoining the said river are hereby permitted and allowed to set set-nets or 
scoop-nets at North Eiver Bridge, so called, on the Monday and Friday 
evenings of the said days in each week, from eight of the clock in the 
afternoon to ten of the clock in the evening of the same day, between the 
first day of April and the fifteenth day of May annually, on the penalty of 
five pounds for each offence. 

Sect. 11. Be it further enacted, That all fines and forfeitures accruing 
for any breach of this act shall be one half to the use of the poor of the 
said town of Pembroke, and the other half to him or them who shall sue 
and prosecute for the same, to be recovered by action of debt in any court 
proper to try the same. And all former laws heretofore made for the regu- 
lation of the alewive fishery in the tovni of Pembroke, are hereby 
repealed.— [February 26, 1790. 



30 INLAND FISHERIES. 

An Act to regulate the catching of Shad, Salmon and Alewives, and to prevent Obstruc- 
tions in Merrimack River, and in the other llivers and Streams running into the same, 
within the Commonwealth, and for repealing several Acts heretofore made for that 
purpose. 

[Additional Acts, 1790, p. 272 ; 1793, p. 442; 1794, p. 511; 1803, p. 43; 1795, p. 35; 1804, p. 441; 1805, 
p. 577; 1807, p. 56; 1809, p. 223.] 

(Page 272.) Sect. 1. Be it enacted. That an act passed in the year of 
our Lord one thousand seven hundred and eighty-three, entitled " An Act 
to regulate the catching Salmon, Shad and Alewives, and to remove and 
prevent obstructions in Merrimack Eiver, and in the other rivers and 
streams running into the same within this Commonwealth, and for repeal- 
ing several acts heretofore made for that purpose," together with the several 
subsequent acts in addition thereto, be and are hereby repealed, except so 
far as may relate to any action, indictment or information which have been 
already commenced for the breach of the same. 

Sect. 2. Be it further enacted, That no person or persons whatever be 
allowed, from and after the passing this act, to catch any salmon, shad or 
alewives in any part of Merrimack River, or in any river or stream center- 
ing to and running into the same, within this Commonwealth, oftener or 
more than three days in a week, the days to be Monday, Tuesday and 
Wednesday in each week, and from sunrise on Monday morning to sunrise 
on Thursday morning. And if any person or persons shall catch any 
salmon, shad or alewives in Merrimack River, or any river or stream 
centering to or running into the same, or shall drag any seine or drag-net, 
or set any net or pot, or use any other machine for the purpose of catching 
any of the said fish in the said rivers and streams, and within this Common- 
wealth, at any other time or place than by this act is allowed, each and 
every person so offending shall forfeit and pay for each offence a fine not 
less than thirty shillings, nor more than four pounds, at the discretion of 
the CO art before which trial shall be had, according to the aggravation of 
the offence, and the seine, net, pot or other machine so used shall be for- 
feited. 

Sect. 3. Be it further enacted, That if any person or persons shall erect 
any obstruction or incumbrance in or across the said Merrimack River, or 
in any of the rivers or streams running into the same, or continue such as 
are already erected, so as to prevent the free passage of the said fish up 
and down the said rivers and streams, he or they so offending shall forfeit 
and pay a fine of twenty pounds. 

Sect. 4. Be it further enacted, That no person or persons, from and after 
the passing of this act, shall at any time catch any salmon, shad or 
alewives with seines, nets, pots or in any other way, at the mouth or 
entrance of the aforesaid streams or rivers (or within eighty rods of the 
same, up such rivers or streams, nor in the mouth of Concord River below 
Tyler's or Spaulding's mill-dam) , in which such fish usually go up to cast 
their spawn, nor in any pond from which such rivers or streams proceed, 
nor in any brook or rivulet that run into such ponds ; and any person or 
persons so offending shall for each offence forfeit and pay a fine not less 
than thirty shillings, nor more than four pounds, at the discretion of the 
court before which trial shall be had, according to the aggravation of the 
offence ; and the seine, net, pot or other machine used in catching the same 
shall be forfeited. 



APPENDIX. 31 

Sect. 5. Be it further enacted, That if any person or persons shall fish 
with a seine or net exceeding eighteen rods in length, or extend more than 
one seine or net on the same fishing ground, at one and the same time, he 
or they shall for each ofieuce forfeit and pxiy a fine of four pounds, and such 
seines or nets shall be forfeited. 

Sect. 6. Be it further enacted, That from and after the passing this act, 
every town in this Commonwealth bordering on Merrimack Eiver, and in 
which there are any ponds, rivers or streams centering to or emptying 
themselves into Merrimack Eiver, where salmon, shad or alewives do or 
would (if not obstructed) go up to cast their spawn, shall at their annual 
meeting in the month of March or April annually, choose by ballot, at least 
four suitable and fit persons as fish-wardens, whose duty it shall be jointly 
and severally to see that this act, and the act for keeping open sluice-ways 
in dams, be carried into eflect, and to inform against any person or persons 
that shall offend against the said acts, and to examine and measure seines 
and nets used in catching the said fish, and to see that all obstructions in 
the rivers and streams aforesaid be removed, and to prosecute all breaches 
of the said acts. And all persons chosen fish-wardens as aforesaid shall be 
sworn to the faithful discharge of the duties of their oSice ; and when so 
sworn, they shall have power to pursue, and they are hereby authorized to 
pursue and execute the duties of their said ofiice, in any to-uTi or place 
within this Commonwealth where this act can operate or have force. And 
if any person chosen as aforesaid shall refuse or neglect to be sworn to the 
faithful discharge of the duties of the said ofiice, he shall forfeit and pay a 
fine of forty shillings for the use of the poor of such town, to be recovered 
by the town treasurer; and such town shall proceed to a new choice, and 
so toties quoties. And any person who shaU prevent any fish- warden from 
measuring any seine or net which shaU be used for the purpose of taking 
fish in the said rivers and streams, shall forfeit and .pay the sum of four 
pounds. And If any of the towns aforesaid shall neglect to choose fish- 
wardens annuaUy, agreeably to the true intent of this act, such town shall 
forfeit and pay a fine of fifty pounds, for the use of the county in which 
such delinquent town lies. 

Sect. 7. Be it further enacted. That if any fresh salmon, shad or alewives 
shaU be found with or in the possession of any person or persons what- 
ever within three miles of any of the said rivers or streams, and within 
this Commonwealth, at any other time than that allowed by law for catch- 
ing the said fish in the said rivers and streams, such person or persons 
shall be held and accounted in law to be guilty of catching such fish con- 
trary to the true intent and meaning of this act, and shall pay a fine accord- 
ingly; unless such person or persons shall make oath in the court before 
whom the trial is had, that the said fish were actually caught within the 
time allowed by law for catching the same, or make proof who was the per- 
son or persons that caught such fish, or who sold the same. 

Sect. 8. Provided, alicai/s, That eveiy justice of the peace to whom 
complaint shall be made against any person or persons for having in his or 
their possession any fresh shad, salmon or alewives, as aforesaid, shall, be- 
fore he issues his warrant against the person or persons complained of, 
cause the complainant to make oath to his complaint, and that he really 
believes such fish were caught at a time prohibited by law for catching the 
same. 



32 INLAND FISHERIES. 

Sect. 9. A7id be it enacted, That any of the said fish- wardens, ^and ju- 
rors, sheritfs, deputy sherifi's, or constables, shall have a right to .seize any 
seine, net, pot or other machine, employed in any of the said rivers or 
streams for the purix)se of catching the said fish at any other time or 
place than such as are allowed by this act. And any person or persons 
that shall prevent such fish-warden, grand juror, sherifi", deputy sheriff, or 
constable, from such seizure, or shall rescue any seine, net, pot or other 
machine from such officer, when seized, shall, on conviction thereof before 
a justice of the peace, pay a fine not less than thirty shillings nor more 
than four pounds, and shall be liable to answer to the seizing officer, in an 
action of trespass, for double the value of such seine, net, pot or other 
machine. 

Sect. 10. Be it further enacted, That when any seine, net, pot or other 
machine shall be employed for the purpose of catching fish, at any time or 
place not allowed by this act, and shall be seized by any of the officers afore- 
said, it shall be the duty of such officer to give information to some justice 
of the peace within the county wherein such seine, net, pot or other ma- 
chine was found employed as aforesaid ; a copy of which information, con- 
taining the times when and the place where such seine, net, pot or other 
machine was seized, shall, by order of such justice, be posted up in some 
public place in each of the two towns next adjoining the place where such 
seine, net, pot or other machine was seized ; and also a notification to all 
persons interested in such seine, net, pot or other machine, to appear before 
the said justice, at a time therein named (which shall be within fourteen 
days, and shall not be less than seven days from the time of posting up the 
notification), to show cause, if any they have, why such seine, net, pot 
or other machine should not be forfeited; and if, upon trial, the claimer or 
claimers shall produce sufficient evidence that he and they were ignorant 
of the unlawful use of their seine, net, pot or other machine, and shall give 
information of the person or persons unlawfully using the same, the seine, 
net, pot or other machine, seized as aforesaid, shall be restored to the 
claimer or claimers thereof. And the person or persons convicted of using 
the same without the consent of the owner, shall, in addition to the penalty 
in this act provided for fishing on days not herein allowed of, pay another 
fine of twenty shillings each, or sufier imprisonment in the common gaol, 
not exceeding twenty days ; but in all cases where the owner or owners 
shall not produce evidence of the person or persons ofi'ending, their seine, 
net, pot or other machine shall be adjudged forfeited. 

Sect. 11. Be it enacted, That on complaint, made to any justice of the 
peace for the county where any ofi'ence against this act shall be committed, 
against any person or persons for breach of this act, or upon view of any 
justice of the peace, such justice is hereby empowered to issue his warrant, 
directed to a proper officer, to apprehend such ofi'ender or ofienders, and 
bring him or them before him, or some other justice of the peace in the 
same county, to answer for the oflence. 

Sect. 12. Be it further enacted. That all fines and forfeitures, incurred by 
breach of this act, where the fine, exclusive of the net, seine, pot or other 
machine used in such breach, doth not exceed four pounds, shall be recov- 
ered before any justice of the peace in the county where the oftence is 
committed ; an appeal being allowed, to either party, to the court of general 



APPENDIX. 33 

sessions of the peace, next to be holden in and for the same county : provided, 
such appeal is claimed in open court, within one hour after judgment is de- 
clared : provided, also, that the appellant recognize with sufficient sureties to 
prosecute his appeal to effect, and abide the final judgment thereon ; and 
the justice shall bind over the witnesses against such offending person or 
persons ; and in case of conviction before the justice, and no appeal had, the 
person or persons so convicted, shall, upon neglect to pay to the justice the 
fine so laid on him or them, and legal costs, be committed to the gaol of the 
county, there to remain until payment be made ; and all fines, upwards of four 
pounds, exclusive of the seine, net, pot or other machine, shall be recov- 
ered by bill, plaint or information in any court within this Commonwealth 
proper to try the same. 

Sect. 13. Be it enacted, That it is hereby made the duty of all grand 
jurors, sheriffs, deputy sheriffs and constables, diligently to inquire after 
and duly to prosecute all breaches of this act. And the testimony of any 
fish-warden, duly chosen and sworn as aforesaid, grand jurors, sherifl', de- 
puty sheriff or constable under oath, in court, shall be sufficient evidence 
to convict any person of a breach of this act, unless such testimony be in- 
validated by other sufiicient witnesses. 

Sect. 14. And he it enacted, That all fines and forfeitures incurred by 
breach of this act, not otherwise appropriated, shall enure, one moiety 
thereof to the poor of the town where the offence shall be committed, and 
the other moiety to him or them who shall make information of the same. 

Sect. 15. Provided, always, That the said fish may be taken in the mouth 
of Concord River, with nets and seines, below Tyler's and Spauldiug's mill- 
dam, two days in a week, the days to be Tuesday and "Wednesday, from sun- 
rise on Tuesday to sunris<i on Thursday. 

Sect. 16. And be it enacted. That the fish officers which may be chosen, 
by virtue of the acts which this act repeals, by any town prior to their 
knowledge of this act, shall have and exercise the same powers as are del- 
egated to fish- wardens by this act. — QMarch 4, 1790. 

Ay Act for the Preservation and Increase of the Fish called Alewives, in Acquesnet 
Kiver, in the Town of New Bedford, in the County of Bristol, and for regulating the 
taking the said Fish in the said River. 

(Page 283.) Sect. 1. Be it enacted, That the owner or owners of each 
and every mill-dam on the said river, shall make provide and continue a 
sluice-way of two feet wide and eight inches deep, for the said fish to pass 
their respective dams, as low as the selectmen of the said town of Xew 
Bedford shall judge convenient for the said fish to pass in; and the select- 
men of the said town of New Bedford are hereby authorized, on the second 
Monday of April, annually, to open the said sluice-ways, which, when 
opened by them, shall remain open until the twentieth day of May, annually ; 
and the owner or owners of any dam on the said river, who shall neglect or 
refuse to make, provide and continue a sluice-way as aforesaid, or who, 
after such sluice-way is opened as aforesaid, shall shut or obstruct the same 
during the term the said sluice-way is to be kept open as aforesaid, shall 
forfeit and pay the sum of forty pounds for each offence. 

Sect. 2. Be it further enacted. That the said town of New Bedford, at 
their annual meeting for the choice of town officers, in the months of March 
5 



34 INLAND FISHERIES. 

or April, annually, are hereby authorized to choose a committee, consisting 
of not more than twelve nor less than three suitable, discreet persons, for 
inspectors of the said river; whose duty it shall be, within four days after 
their appointments, to post up, in four public places in the said towTi nearest 
the said river, a notification, under their hands, or the major jxirt of them, 
pointing out the times when and places where the said fish may be taken 
in the said river ; and if any person shall pull down or deface such notifica- 
tion, he or she shall, for each ofi'ence, forfeit and pay ten shillings ; and if 
such committee shall neglect or refuse to post up such notification within the 
said term of four days, such committee shall forfeit and pay ten shillings ; 
and any person who shall presume to take any of the said fish, in the said 
river, except at the times and places appointed by the said committee, as 
aforesaid, shall forfeit and pay three pounds for each oflence. 

Sect. 3. Be it further enacted, That if any person or persons shall make 
any wears or other obstructions to hinder the passage of the said fish up 
the said river, each person so ofiending shall forfeit and pay the sum of four 
pounds ; and any person who shall take or catch any of the said fis^h in the 
said river with any other instrument than a dip cet, shall forfeit and pay 
forty shillings for each ofl'euce. 

Sect. 4. Be it further enacted, That all the forfeitures mentioned in this 
act shall accrue to the said town of New Bedford, to b^ recovered by the 
treasurer of the said town, in an action of debt, in any court proper to try 
the same ; and no person shall be considered as disqualified from giviug 
evidence in any such action, on account of his living in or being an inhab- 
itant of the said town of New Bedford. 

Sect. 5. Be it further enacted, That any agreement which may be made 
and entered into, between the said town of New Bedford and the owner 
or owners of any dam on the said river, with regard to the premises, shall 
be good and valid in law. — [June 19, 1790. 

1791. 

An Act to repeal in part an Act, entitled " An Act to prevent the Destruction of FisTi 
called Shad and Alewives, in Ten and Three Miles Rivers, in the County of Bristol."* 

(Page 287.) Whereas the act entitled " An Act to prevent the destruc- 
tion of fish called shad and alewives, in Ten and Three Miles Rivers, in the 
county of Bristol," appears not to be of public utility, so far as the same act 
respects the said river called Three Miles River : 

Sect. 1. Be it therefore enacted, That the said act to prevent the destruc- 
tion of the fish called shad and alewives, in Ten and Three Miles Rivers, 
shall be and the same is hereby repealed and declared null and void, from 
the time of passing this act, as to all matters therein required or authorized 
to be done respecting the river called Three Miles River, saving only, that 
all acts and doings heretofore lawfully performed by virtue of the said act 
shall and may be justified thereby, this repeal notwithstanding.— [Feb. 11, 
1791. 

♦March 10, 1788. 



APPENDIX. 35 

As Act for the more effectual Carrying into Execution the Laws regulating the Alewive 
Fishery in Mattepoiset River, in the Town of Rochester.* 

[1803, p. 91 ; 1810, ch. 60; 1814, ch. 99; 1817, ch. 136.] 

(Page 290.) Sect. 1. Be it enacted, That each and every person who, 
according to law, shall be chosen an inspector of Mattepoiset River, shall, 
within six days after his being notified by a constable of the town of Roch- 
ester of his being so chosen, take the following oath before the clerk of 
said town, or some justice of the peace for the county of Plymouth, viz. : 

You, A. B., being chosen an inspector of Mattepoiset River for the year 
ensuing, do swear that you will prosecute all breaches of the laws for the 
regulating the alewive fishery in said river, the year ensuing, which shall 
come to your knowledge. So help you God. 

Sect. 2. Be it further enacted, That if any person who shall be chosen an 
inspector of said river, as aforesaid, shall neglect to take said oath for the 
space of six days after he is notified of his being so chosen as aforesaid, he 
shall forfeit to the use of the said town of Rochester thirty shillings, to be 
recovered by the treasurer of said town in an action of debt, in any court 
proper to try the same. — [Feb. 23, 1791. 

An Act for regulating the Fishery in Connecticut River. 
(Page 296.) Sect. 1. Be it enacted., That na person or persons shall, 
between the fifteenth day of March and the fifteenth day of June, in any 
year, set or draw any seine or seines, or any other machine, for the purpose 
of catching fish in Connecticut River, or in any river or stream falling into 
the same, from the rising of the sun on Saturday morning until the rising 
of the sun on Tuesday morning. And every person that shall be convicted 
of any breach of this act shall forfeit the sum of ten pounds, and also the 
value of the seine and other machines or utensils used in fishing as afore- 
said, to be recovered by any person who shall sue for the same before any 
court having jurisdiction thereof. And all acts heretofore made for regulat- 
ing the fishery in the rivers and streams aforesaid are hereby repealed. 
—[March 7, 1791. 

[Repealed, 1315, chap. 111.] 

A2I Act to regulate the taking of Fish called Alewives in the Town of Middleborough, in 
the County of Plymouth, and for repealing a certain Law made for that purpose, in the 
year of our Lord one thousand seven hundred and forty-nine. 

[Additional Acts July 8. 1798 ; Jan. 21, 1802. Repeals Act of 1749 ; revived and made perpetual March 
7, 1797. Again repealed June 22, 1797. The A ct 1764 made perpetual M arch 7, 1797.] 

(Page 313.) Whereas the laws already made for regulating the taking 
fish caUed alewives, at the places caUed the Old Stone Ware and Assawom- 
set Brook, in said town, are found inconvenient. For remedy whereof, 

Sect. 1. That from and after the passing this act, it shall and may be 
lawftd for the inhabitants of said town, annually, to farm or hire out the 
privilege of taking said fish at the place caUed the Old Stone Ware, and at 
such place in Assawomset, in said town, as the inhabitants thereof shall 
vote and order, to such person or persons as shall appear to give most for 

* June 15, 1789, and March 1, 1788. 



86 INLAND FISHERIES. 

said privilege, four days in a week, at said Stone Ware, viz. : Tuesday, "Wed- 
nesday, Thursday and Friday ; and at Assawomset Brook three days in a 
week, viz. : Monday, Tuesday and Wednesday, beginning at midnight pre- 
ceding Tuesday, and ending at midnight succeeding Friday, at said Stone 
Ware, and at midnight preceding Monday, and ending at midnight succeed- 
ing Wednesday, at said Assawomset Brook ; said fish to be taken at said 
Stone Ware with scoop-nets only; and at said Assawomset Brook with 
scoop-nets or set-nets only. 

Sect. 2. Be it further enacted, That the purchasers of said privilege shall 
not ask or receive for said fish when taken, more than one shilling per 
hundred,* and in that proportion for a greater or smaller quantity ; and that 
the purchasers of said privilege shall be obliged to sell said fish at that rate, 
at all times when they shall have tmj on hand, when applied to, upon the 
penalty of five pounds, to be recovered by action of debt, in any court 
proper to try the same, for each neglect or refusal ; one moiety thereof to 
the use of the poor of said town, and the other moiety to the use of any 
person who shall prosecute for the same ; and it shall be the duty of the in- 
habitants of the said town, annually, to provide for such of the poor inhab- 
itants thereof as shall be unable to procure them for themselves, such quan- 
tities of said fish as shall be thought necessary, who shall receive the same 
gratis; and in order thereto. 

Sect. 3. Be it further enacted, That said inhabitants shall choose a com- 
mittee of nine discreet, judicious men, one in each constable's district in 
said town, in the fall of the year annually, who shall report to the overseers 
of the poor of said town, previous to the ensuing spring, the number and 
names of such poor inhabitants, the number in each family, and their situa- 
tion ; and it shall be the duty of such overseers to apportion to every such 
family such quantity of said fish as they in their discretion shall think 
ne<jessary, and shall draw their orders on the purchasers of said privilege 
for the same, which orders shall be taken and received by said purchasers, 
equal to money, and shall be received of them by the treasurer of said 
town equal to money, in discharge of the purchase money of the privilege 
aforesaid. 

Sect. 4. Be it further enacted, That any person who shall presume to 
take any of the said fish in any other way, at any other time, or any other 
place in said river or brook, or any parts or dependencies thereof, than 
those prescribed by this act, eveiy person concerned therein shall forfeit 
and pay for each ofi'ence the sum of forty shillings, to be recovered by action 
of debt in any court proper to try the same, one moiety thereof to the 
treasurer of said town for the use of the poor thereof, and the other moiety 
to the party who shall sue therefor. 

Sect. 5. Be it further enacted, That the scoop-net, or other instrument 
by which any person shall take or attempt to take any of said fish contrary 
to the true intent and meaning of this act, shall be forfeit, and any other 
person shall have liberty to seize arid secure the same to his own use ; and 
if said scoop-net or other instrument, forfeited as aforesaid, shall be carried 
away, concealed or withheld, so that the party attempting cannot take 
or come at the same, said party so attempting to take said instrument may 
sue for and recover the value thereof in a special action of the case, before 

* The price fixed by this Act repealed Feb. 8, 1798. 



APPENDIX. 37 

any court having proper jurisdiction thereof, against the owner or posses- 
sor thereof to his own use. 

Sect. 6. Be it further enacted. That if any person shall be found near 
said river or brook, or going from thence, with any quantity of said fish 
exceeding sixty in number, which are suspected to have been taken in 
violation of this act, it shall be the duty of every person who shall then 
suspect said fish to have been taken illicitly to examine the possessor thereof 
respecting the means of his procuring them ; and if he cannot make it 
appear that he came by them legally, he shall forfeit the whole of said fish 
that he shall so be possessed of, to be recovered in the same way and man- 
ner as scoop-nets and other instruments are recovered, as provided in this 
act, and be subject to the penalty of forty shillings for taking fish contrary 
thereto, to be recovered in the same way as is herein before provided in 
that particular ; and to prevent difficulty and unnecessary expense to per- 
sons purchasing said fish, it shall be the duty of the clerk of, or some one 
of the purchasers of said privilege to give a certificate under his hand, to 
all persons who purchase any quantity of said fish, exceeding sixty in num- 
ber, of the time when, and the place where, and the quantity purchased, and 
his producing said certificate shall be evidence of his obtaining said fish 
legally. 

Sect. 7. Be it further enacted, That if any children or servants shall 
ofifend against this act, unless their parents, masters or guardians, or some 
other person in their behalf, shall pay the penalty set against such ofi'enders 
within twelve hours after notice being given them of such offence, such 
chidren or servants shall be proceeded against by complaint before any 
justice of the peace in and for said county, and upon conviction thereof 
shall be committed to the house of correction, there to remain not less than 
five nor more than twenty days, according to the nature of said offence, in 
the judgment and at the discretion of the court or justice before which said 
conviction may be had. 

Sect. 8. Be it further enacted, That all persons not otherwise disquali- 
fied shall be considered and taken to be competent and legal witnesses in 
any prosecution upon this act, they being inhabitants of said town of 
Middleborough, notwithstanding. 

Sect. 9. Be it further enacted, That lan act passed in the year of our Lord 
seventeen hundred and forty-nine, entitled " An Act to prevent the unneces- 
sary destruction of alewives in the town of Middleborough," be and hereby 
is repealed. 

Sect. 10. Provided, nevertheless, That no clause in this act shall extend to 
or be considered so as to affect an act passed in the year of our Lord seven- 
teen hundred and sixty-four, entitled " An Act in addition to an act entitled 
* An Act to prevent the unnecessary destruction of alewives in the town of 
Middleborough.' "—[Jan. 30, 1792. 

An Act for regulating the taking the Fish called Alewives, in their passage up Indian 
Head River, so called, between the Towns of Pembroke and Hanover, in the County 
of Plymouth, into a pond in said Town of Pembroke, known by the name of Indian, 
Head Pond. 

[Previous Act, 1790, p. 269. Additional Act, 1811, ch. 72 ; 1859, ch. 90.] 

(Page 326.) Sect. 1. Be it enacted. That there shall be sluice-ways made 
and opened through, or passage-ways made round all and each of the dams 



88 INLAND FISHERIES. 

standing on or across the river aforesaid, sufficient in the judgment of the 
major part of the committee or committees of the aforesaid towns of Pem- 
broke and Hanover, to be chosen as is hereafter provided, for the passage 
of the said fish up the said river to the aforesaid Indian Head Pond, in the 
town of Pembroke. 

Sect. 2. Be it enacted, That the owner or owners of the several dams 
that now are, or hereafter may be erected on said Indian Head River, shall 
make and provide such sluice-ways or passage-ways as are 'by this uct 
required to be opened and kept open from the tenth day of April to the 
twentieth day of May annually. 

Sect. 3. Be it further enacted, That if any owner or owners of any dams 
that now are, or may hereafter be erected on or across said river, shall refuse 
or neglect to opea and keep open such good and sufficient sluice-way or pas- 
sage-way for the term aforesaid, he shall forfeit and pay the sum of fifty 
pounds, to be recovered by action of debt in any court proper to try the same, 
one moiety to him or them that shall sue and prosecute for the same, and 
the other moiety to the aforesaid towns of Pembroke and Hanover. 

Sect. 4. Be it farther enacted, That the towns of Pembroke and Hanover, 
at their respective towu-meetiugs for the choice of town officers, in the 
month of March or April annually, shall choose at least three persons, 
freeholders in each of said towns, who shall be a committee to carry this 
act irito efiect, any four of whom shall be a quorum, and shall be sworn as 
other town officers are, to the faithful discharge of the duties of their 
office ; and if any person chosen as aforesaid, and accepting of the said 
trust, shall neglect to take an oath as aforesaid within seven days from his 
being so chosen, he shall forfeit and pay the sum of ten shillings ; or being 
chosen and sworn,, if he shall neglect to perform his duty he shall forfeit 
and pay the sum of five pounds ; the said forfeitures to be sued for and 
recovered by the treasurer of the town where such ofiender belongs, for 
the use of such town. 

Sect. 5. Be it further enacted. That any three of said committee shall 
have full power and authority to open, or cause to be opened and kept open, 
such sluice or passage-ways at the expense of the owner or owners of any 
dam or dams that now are, or hereafter may be erected on or across said 
stream or river : provided, said owner or owners shall refuse or neglect to 
open the same by the tenth day of April annually. And said committee are 
hereby empowered to remove all and every obstruction to the passage of 
said fish up or down said river, that may be in or across the same ; and if, 
for the purposes mentioned in this act, it shall be necessary for said com- 
mittee, or either of them, to go on the land of any person or persons 
through which said river runs, it shall not be deemed a trespass ; and if any 
person or persons shall hinder or molest said committee, or either of them, 
in the execution of his or their office, the person so offending shall forfeit 
and pay a sum not exceeding twenty shillings, nor less than ten shillings, 
to be sued for and recovered by and to the use of the officer against whom 
the offence is committed ; and said committee shall not be liable to prose- 
cution for any doings in the necessary discharge of the duties of their office. 

Sect. 6. Be it further enacted, That the time when and the places where 
said fish shall be taken in said river, or any brook or stream discharging 
into said Indian Head River or Pond, shall be agreed upon by and be under 
the regulations of the committees of the said towns of Pembroke and Han- 



APPENDIX. 39 

over, or the major part of them : provided, the said committee shall not au- 
thorize the taking said fish more than three days in a week in any of the 
places before mentioned ; and the said committee shall post up notifications 
in two of the most public places in each of the said towns of Pembroke 
and Hanover, specifying the times and places when and where said fish shall 
be taken, six days at least before the said tenth day of April annually. 

Sect. 7. Be it further enacted, That if any person or persons shall pre- 
sume to take any of said fish, on the river or streams aforesaid, in any other 
way or manner than such as shall be directed by the aforesaid committee, 
or the major part of them, he shall forfeit and pay a sum not exceeding 
three pounds nor less than forty shillings, at the discretion of the justice 
before whom the same shall be tried ; one moiety to him who shall prose- 
cute and sue for the same, and the other moiety to the use of said towns of 
Pembroke and Hanover. 

Sect. 8. Be it further enacted, That no person shall be disqualified from 
being a witness on any trial that may be had pursuant to this act, on acr 
count of his being an inhabitant of or belonging to either of the said towns 
of Pembroke or Hanover. And if any person or persons shall be found 
having said fish in his or their possession, and there be reasonable grounds 
of suspicion that such person or persons took said fish unlawfully, he or 
they shall be subject to the penalties of this act, unless sufiicient evidence 
be adduced that said fish were taken agreeably to the spirit and meaning of 
the same.— [Feb. 22, 1792. 

An Act to enable the Town of Framingham to regulate and order the taking of the Fish 
called Shad and Alewives, within the limits of said Town. 

(Page 352.) Sect. 1. Be it enacted, That from and after the publication 
of this act, it shall and may be lawful for the inhabitants of the said town 
of Framingham, at their annual meeting in March or April, during the con- 
tinuance of this act, to determine and order in what manner and by whom 
the said fish called shad and alewives may be taken within the limits of said 
town. And the said inhabitants shall cause a copy of such order, attested 
by the town clerk, to be posted up in some public place in said town; 
whereunto all persons shall conform with respect to the taking said fish 
called shad and alewives, within said town of Framingham, on penalty that 
each and every ofl'ender against the same shall forfeit and pay the sum of 
twenty shillings, to be sued for and recovered before any court proper to 
try the same ; one moiety to the informer, and the other moiety to the poor 
of said town of Framingham. 

Sect. 2. Be it further enacted, That any of the inhabitants of the said 
town of Framingham, not concerned in violating this act, shall and may be 
admitted as witnesses to testify in any action that may be brought for the 
above penalty; they being inhabitants of said town notwithstanding. 
—[March 8, 1792. 

An Act to prevent the Catching of Fish in the Mouth of Agawam Eiver. 

(Page 353.) Sect. 1. Be it enacted. That from and after the first day 
of April next, no person or persons be allowed to catch any salmon, shad 
or alewives, with seines, nets, pots or in any other way, in any part of 
said river within one mile of the mouth or entrance thereof into Connecti- 



40 INLAND FISHERIES. 

cut River. And if any person or persons shall presume to take or catch any 
fish in the said Agawam River, contrary to the true intent of this act, each 
person so offending shall, for each offence, forfeit and pay a fine of four 
pounds. 

Sect. 2. Be it further enacted, That all nets or seines used in taking fish 
as aforesaid, shall be and hereby are forfeited to any person or persons who 
shall seize the same, to his or their own use. 

Sect. 3. Be it further enacted, That all fines and forfeitures incurred by 
any breach of this act shall and may be sued for and recovered, l)y action 
of debt or information, before any justice of the peace within the county 
of Hampshire ; one half of such fines shall enure to him or them who shall 
sue or prosecute for the same, and the other half to the poor, of the town 
where the offence shall be committed. — [March 8, 1792. 

An Act in addition to an Act passed February the twenty-second^ one thousand seven 
hundred and ninety, entitled " An Act to prevent the Destruction of the Fish called 
Alewives in Taunton Great Iliver (so called), in the county of Bristol, and to regulate 
the Catching of said Fish therein for the future." 

[Original Act repealed March 19, 1793.] 

(Page 354.) Whereas the provision made in the said act for preventing 
the destruction of the said fish has been found insufficient for that purpose : 

Sect. 1. Be it enacted, That from and after the publication of this act, it 
shall not be lawful for any person, with scoop-nets or any other instru- 
ments, nor at any other time or place than is allowed by said act, to molest, 
hinder or take said fish, on the penalties made and provided in said act. 

Sect, 2. Be it further enacted, That it shall be the duty of the persons 
chosen by the towns on said river, to enforce said act ; to remove or cause 
to be removed all hinderances and obstructions in said river ; and to pre- 
vent all unlawful catching of said fish as aforesaid, in their towns respec- 
tively, on the penalties made and provided in and by said act. — [March 8, 
1792. 

An Act regulating the taking of the Fish called Alewives, in the several Streams emptying 
into the Merrimack Riyer, in the Town of Andover. 

[Additional Act March 11, 1797, repealing that part of the fifth clause which determines the price.] 

(Page 3G5.) Sect. 1. Be it enacted. That it shall and may be lawful for 
the inhabitants of said town of Andover, from time to time, at their annual 
meeting in the month of March or April, to determine and order, by whom, 
and in what place or places, the said fish may be taken in the several streams 
emptying into Merrimack River within the town aforesaid; and shall 
cause a copy of such order, attested by the town clerk of said town, to be 
posted up in some public place in said town, and in the town of Methuen ; 
and any person who shall violate such order, upon conviction thereof, shall 
forfeit and pay a sum not exceeding twenty shillings, nor less than ten 
shillings : provided, the quantity so taken is less than one barrel ; but for every 
barrel so taken, they shall forfeit and pay the sum of forty shillings, to be 
recovered before any justice of the peace in the county of Essex before 
whom the complaint shall be made, one moiety to the informer, the other 
moiety to the poor of said town. 

Sect. 2. Be it further enacted. That the times and manner prescribed for 
taking- fish in an act passed 4th March, 1790, entitled " An Act to regulate 



APPENDIX. 41 

the catching of salmon, shad and alewives, and to prevent obstructions in 
Merrimack River, and in the other rivers and streams running into the 
same within this Commonwealth, and for repealing several acts heretofore 
made for that purpose," shalll^e observed as the times and manner for taking 
said fish in the said streams in the town of Andover ; and if any person 
shall take any of said fish at any other time or in any other manner than is 
prescribed in the act last recited, he shall for each offence be subject to 
such penalty as is provided in the said act for the same offence, to be re- 
covered and appropriated in the same manner as is therein directed. 

Sect. 3. Be it further enacted, That any of the inhabitants of said town 
of Andover, not concerned in violating this act, may be adnUtted as wit- 
nesses in any action that may be brought for the penalty aforesaid, they 
being inhabitants of said town notwithstanding. 

Sect. 4, Be it further enacted, That the inhabitants of said towns at their 
annual meeting in the month of March or April, shall be and hereby are 
empowered to choose a committee or committees, being freeholders in said 
town ; and each person so chosen shall be sworn faithfully to discharge the 
duties required of them by said town, agreeable to this act ; and the com- 
mittee or committees, or the major part of them, are hereby authorized and 
empowered to open such sluice or passage-way, through or round any dams 
erected, or that shall be erected across said streams, as they shall judge 
necessary for the free passage of said fish, and to remove lumber and every 
other obstruction to the free passage of said fish ; to erect racks or wooden 
frames, as they shall judge necessary, in the stream or streams through 
which the said fish pass, they being restricted, in such opening and clear- 
ing, to do the same as little to the damage of the owner or owners as may 
be ; such passage so opened by the committee aforesaid, shall continue open, 
if they shall judge it necessary, from the tenth day of April to the last day 
of May, annually. And if any person or persons shall unlawfully obstruct 
the passage or passages for said fish, remove or injure any rack or racks 
that shall be erected by said committee on said streams, such person or per- 
sons so offending, upon conviction thereof shall forfeit and pay a sum not 
exceeding thirty pounds nor less than ten pounds, to be recovered in any 
court proper to try the same, one moiety to the informer and the other 
moiety to the poor of said town. 

Sect. 5. Be it further enacted, That the said committee or committees be 
and hereby are authorized and directed to distribute the fish that may be 
taken by them, or any person under them, as equally as circumstances wiU 
admit, to such persons as apply for the same ; and for the fish so supplied, 
the committee or committees shall demand a sum not exceeding one-fifth of 
a dollar for each hundred of fish so delivered, excepting of certain poor per- 
sons of said town of Andover, who, in the opinion of the selectmen of said 
town, are unable to pay for the same, and such persons shall be supplied 
gratis with such quantities as the committee or committees shall judge ex- 
pedient. And the said committee or committees so appointed, shall, on the 
first town-meeting after the month of May annually, exhibit an account of 
all the fish by them disposed of, and the balance, if any remains, after pay- 
ing them a reasonable compensation for their services, shall be paid into the 
treasury of said town, for the benefit thereof. 

Sect. 6. Be it further enacted, That it shall and may be lawful for any 
of said committee or their assistants, while in the execution of their oflace, 
6 



42 INLAND FISHERIES. 

to go upon the land adjoining to said streams without being considered as 
trespassers ; and any person or persons that shall attempt to molest or hinder 
said committee, or either of them, in the execution of their office, shall for- 
feit and pay a sum not exceeding four pounds, nor less than three pounds, 
to be recovered in any court proper to try the same, to be disposed of as is 
provided for in other breaches of this act. 

Sect. 7. Be it further enacted^ That if any person is found attempting 
to take any of said fish at any time or place otherwise than is provided in 
this act, or if any of said fish shall be found in the possession of any per- 
son, such person or persons shall be deemed to have taken them unlawfully, 
and shall be subject to the penalty of this act, unless he or they shall make 
it appear upon trial that they came lawfully by s^id fish. — [March 9, 1792. 

An Act securing the free passage of Fish called Alewives, in the Rivers in the Town of 
Dartmouth, in the County of Bristol, and for the preservation of the same. 

(Page 376.) Sect. 1. Be it enacted. That the owner or owners of each 
and every mill-dam on the EiverPasequamanset(so called) , and other rivers 
situate in the town aforesaid, shall make, provide and continue a sluice-way 
of three feet wide and eight inches deep, for the said fish to pass their re- 
spective dams, as far as the selectmen of the said town shall judge con- 
venient and proper for the said fish to pass in; and the selectmen of 
the said town of Dartmouth are hereby authorized and empowered, on the 
second Monday of April annually, to open the said sluice-ways, which, 
when opened by them, shall remain open until the tenth day of May annual- 
ly ; and the owner or owners, proprietor or proprietors of any dam or dams 
on the said respective rivers, who shall neglect or refuse to make, provide 
and continue a sluice-way as aforesaid, or that, after such sluice-way is 
opened as aforesaid, shall shut or obstruct or cause the same to be shut or 
obstructed during the term the said sluice-way is to be kept open as afore- 
said, shall forfeit and pay the sum of forty pounds for each ofience. 

Sect. 2. Be it further enacted, That the said town of Dartmouth, at their 
annual meeting for the choice of town oflScers in the month of March or 
April annually, are hereby authorized and empowered to choose a commit- 
tee consisting of not more than twelve nor less than two suitable persons 
for inspectors of the said river, whose duty it shall be, within four days 
after their appointment, to put up in four public places nearest the said river, 
a notification or notifications under their hands or under the hands of the 
major part of them, pointing out the time when and designating the places 
where the said fish may be taken in the said river ; and if any person or 
persons shall pull down, mar or deface such notification or notifications, he 
or she shall for each offence forfeit and pay ten shillings ; and if such com- 
mittee shall refuse or neglect to put up such notification or notifications, 
within the said term of four days, such committee shall forfeit and pay ten 
shillings. And any person who shall presume to take any of the said fish 
in the said rivers, except at the times and places pointed out and designated 
by the said committee as aforesaid, shall forfeit and pay three pounds for 
each offence. 

Sect. 3. Be it further enacted, That if any person or persons shall make 
any wear or wears, or any other obstruction to hinder the jmssage of said 
fish up the said rivers, each person so offending shall forfeit and pay the 



APPENDIX. 43 

snm of five pounds ; and any person who shall take or catch any of the said 
fish in the said rivers, with any other instrument than a dip-net, shall forfeit 
and pay four pounds for each offence. 

Sect. 4. Be it further enacted, That if any person or persons shall set 
or draw any seine, drag-net or marsh-net in the said rivers, from and after 
the tenth day of April to the twentieth day of May annually, each person 
so offending shall forfeit and pay ten pounds. 

Sect. 5. Be it further enacted, That if any person or persons shall set or 
draw any seine, drag-net or marsh-net in the said rivers or ponds belong- 
ing to the said town of Dartmouth, for the taking any fish (menhaden ex- 
cepted) at any time whatsoever, he or thej'' so offending shall forfeit and 
pay the sum of twenty pounds. 

Sect. 6. Be it further enacted, That all the forfeitures incurred by this 
act shall accrue to the said town of Dartmouth, to be recovered by the 
treasurer of the said town, in an action of debt, in any court proper to try 
the same ; and no person shall be considered as disqualified from giving 
evidence in any such action on account of his living in or being an inhab- 
itant of the said town of Dartmouth. — [June 27, 1792. 



1703. 

An Act to enable the Town of Newbury to Regulate and Order the taking of Fish called 
Shad, Bass and Alewives, in the River Parker, within the limits of said Town. 

(Page 408.) Sect. 1. Be it enacted. That from and after the publication 
of this act it shall and may be lawful for the inhabitants of said to-vvn 
of Newbury, at their annual meeting in March or April, during the continu- 
ance of this act, to determine and order in what manner and at what time 
the said fish called shad, bass and alewives, in the River Parker, may be 
taken within the limits of said town. And the said inhabitants shall cause 
a copy of such order, attested hy the town clerk, to be posted up in some 
public place in said town, whereunto all persons shall conform with respect 
to the taking said fish called shad, bass and alewives, iu the River Parker, 
within said town of Newbury, on penalty that each and every offender 
against the same shall forfeit and pay the sum of twenty shillings, to be 
sued for and recovered before any court proper to try the same ; one moiety 
to the informer and the other moiety to the poor of said town of New- 
bury.— [March 2, 1793. 

A?f Act to prevent the Destruction of the Fish called Alewives, in Taunton Great River, 
80 called, in the County of Bristol, and also to regulate the Catching of the said Fish 
therein for the future. 

[Act to regulate the price, Feb. 23, 1797. Additional Act, March 4, 1800. Original Act repealed, 
Feb. 22, 1790. Addition passed March 8, 1792 3 

(Page 422.) "Whereas the law made for regulating the alewive fishery in 
Taunton Great River, so ealled, in the county of Bristol, is found to operate 
unequally upon and to the disadvantage of several towns situated on said 
river, and has not answered the salutary purpose of preserving and increas- 
ing the said fish as intended : 

Sect. 1. Be it enacted, That from and after the twentieth day of March, 
instant, it shall not be lawful for any person or persons whatever, at any 
time after the twentieth day of March, instant, as aforesaid (except as is 



44 INLAND FISHERIES. 

hereinafter provided), to catch alewives or any other fish with seines or 
drag-nets in said river : provided, that it shall and may be lawful for the 
inhabitants of the several towns situated on the said river to catch alewives 
and other fish, within the bounds of their own town, and nowhere else, 
with seines or dra^-nets, part of four days in each week only, viz. : on Mon- 
day, Tuesday, Wednesday and Thursday, from sunrising till sunsetting on 
each of said days in each week : and provided, each town situated on said 
river as aforesaid, draw or sweep with two seines or drag-nets only ; except 
the town of Taunton, which town is hereby allowed and permitted to draw 
or sweep with three seines or drag-nets, in said river, on the days and 
within the time mentioned as aforesaid ; and neither of the towns afore- 
said, nor the inhabitants thereof, are permitted at any time whatever 
to set their seines or drag-nets across said river, or any part thereof, or 
make use of any seine or drag-net which is or shall at the time be more 
than twenty rods in length : x>rovided, also, that each of said towns shall, 
at a legal town meeting, ascertain and establish annually, by vote, the 
places where the said seines or drag-nets may be drawn within the bounds 
of their respective towns, as aforesaid, exclusively ; and at the same meet- 
ing, or at an adjournment thereof, dispose of and grant for that year, and 
so on from year to year, the sole privilege of catching alewives or other 
fish, with seines or drag-nets, on the parts of the days of the week above 
mentioned and specified, at the places ascertained and established as afore- 
said, to such person or persons as shall ofi"er or give most for the same, and 
give sufficient security for the payment of the same so ofi'ered and agreed 
on, at such time and in such manner as the inhabitants of the respective 
towns shall assign and order ; said person or persons so agreeiiig and giving 
security as aforesaid to have right to fish, and no other person whatever. 

Sect. 2. Be it further enacted, That if any person or persons shall pre- 
sume to draw any seine or drag-net, on any day or time except the parts of 
days before mentioned, or at any place other than the one ascertained and 
established by the town, as aforesaid, or shall on any day or at any place 
set a seine or drag-net in or across said river, or any part thereof, he shall 
forfeit and pay fifteen pounds for each and every such ofience, with costs of 
suit ; one half thereof to the use of the poor of the town where the oflfence 
ehall be committed, and the other half thereof to him or them who shall sue 
for the same, to be recovered by action of debt in any court proper to try 
the same. 

Sect. 3. Be it further enacted. That if any person or persons shall be 
found sweeping with any seine or drag-net, or if i.ny seine or drag-net 
shall be made use of by any person or persons whatever, contrary to the 
true intent and meaning of this act, or any part thereof, it shall and maybe 
lawful for any person or persons to seize and take such seine or drag-net to 
his or their own use and benefit ; and if prosecuted therefor, to plead the 
general issue and give this act in evidence, as though the same was espec- 
ially pleaded. 

Sect. 4. Be it further enacted, That the several towns on Taunton Great 
Biver aforesaid shall, at their annual meeting in the month of March or 
April in each year, choose three or more persons, being freeholders in their 
respective towns, to see that this act be duly observed ; and each person so 
chosen shall be sworn to discharge faithfully the duties herein required ; 
and if any person so chosen shall refuse to serve, he shall forfeit and pay, to 



APPENDIX. 45 

and for the use of the poor of the town to Tvhich he belongs, the sum of 
twenty shillings, to be sued for and recovered by the town clerk, and the 
said town shall immediately proceed to a new choice. 

Sect. o. Be it further enacted^ That an act made and passed the twenty- 
second day of February, in the year of our Lord one thousand seven hun- 
dred and ninety, entitled " An Act to prevent the destruction of the fish 
called Alewives, in Taunton Great River, so called, in the county of Bristol, 
and to regulate the catching said fish therein for the future," be and it is 
hereby repealed (excepting the repealing clause thereof) : provided, that 
all acts and things done and performed already, by virtue of said act, are 
hereby and shall be considered good and valid as though this present law 
had never been made ;- and all sales of privilege and ascertaining of places 
for catching alewives and other fish for the present year, shall be considered 
good and valid as though done under and by virtue of this present act. 

Sect. 6. Be it further enacted, That the purchasers of the privileges 
aforesaid shall sell said fish to any person or persons who shall apply there- 
for, when they have any on hand, at the rate of two shillings per hundred, 
for the first three weeks after fish begin to run ; and at the rate of one shil- 
ling and sixpence per hundred afterwards, and no more, upon the penalty 
of forfeiting twenty shillings for every hundred of said fish they shall sell 
over and above said prices ; to be recovered by action of debt in any court 
proper to try the same : provided, this act shall not operate so as to estab- 
lish any price at which said fish shall be sold by the purchasers of the priv- 
ileges in said towns the present year. — [March 19, 1793. 

An Act permitting the Inhabitants of that part of the Town of Wareham which was 
formerly part of Rochester, to take Alewives with Seines or Drag-nets, at a place called 
the Narrows, in Wareham River, on a certain Day in each Week. 

(Page 441.) Sect. 1. Beit enacted, That any inhabitant of that part of 
the town of Wareham which was formerly part of Rochester, be and they 
are hereby allowed and permitted to take for their own use, with one seine 
or drag-net only, the fish called alewives, at a place called the Narrows, in 
Wareham River, on the west side thereof, and to the northward of Nathan 
Bassett's now dwelling-house, one-half day in each week, from sunrising 
until twelve of the clock on every Monday, and at no other time ; any law 
or usage to the contrary notwithstanding. 

Sect. 2. Be it further enacted, That no person or persons^ inhabitants as 
aforesaid, shall sell or dispose of any of said fish, caught as aforesaid, to 
an;^ person or persons not inhabitants as aforesaid. 

Sect. 3. Be it further enacted. That if upon complaint made before any 
justice of the peace for the county of Plymouth, any person or persons shall 
be convicted of a breach of this act, he shall forfeit and pay, for every such 
offeoce, a fine of four pounds ; one half thereof to the complainant, and the 
other half thereof to the poor of the town of Wareham. — [March 26, 1793. 

An ACTin addition to an Act passed the fourth day of March, one thousand seven hundred 
and ninety, entitled " An Act to regulate the catching of Salmon, Shad and Alewives, 
and to prevent obstructions in Merrimack River, and in the other Streams running into 
the same, within this Commonwealth." 

CBefers to an Act passed March 4, 1790. Additional Acts, 1794, p. 511 ; 1803, p. 43; 1795, p. 35 ; 1804, p. 
441; 1805, p. 577; 1807, p. 56.] 

(Page 442.) Whereas it is found by experience that the catching of fish 
at or near the mouth of the rivers and streams emptying in Merrimack 



46 INLAND FISHERIES. 

River, within the town of Andover, greatly obstruct and impede fish enter- 
ing and passing up said rivers and streams : therefore, 

Sect. 1. Be it enacted, That no person or persons shaD, after passing 
this act, be allowed to catch salmon, shad or alewives, or drag any seine, 
or set any net, pot or other machine, for the purpose of taking or catching 
said fish, or any other ways obstruct said fish in their passage, within 
fifty rods below or twenty rods above the mouth of any river or stream in 
the town of Andover emptying into Merrimack River aforesaid ; nor draw 
any seine, for catching of alewives, between the mouths of Shawshine River 
and Cocheco Brook, on penalty of four pounds ; and the seine, net, pot or 
other machine so used to be forfeited ; and the fine aforesaid to be recov- 
ered and applied in the same manner as the fines are for the breach of the 
act to which this is in addition. — [March 27, 1793. 

An Act in addition to and for repealing a certain Clause in an Act passed March the 
twenty-eighth, in the year of our Lord one thousand seven hundred and eighty-eight, 
entitled " An Act to prevent the Destruction of Alewives, and other Fish, in Ipswich 
River, and to Encourage the Increase of the same." 

C1788, p. 191. Additional Acts, 1797, p. 128; 1804, p. 431; 1805, p. 524; 1806, p. 1; 1810, ch. 117; 1812, ch. 

127 J 18M, ch. 22.] 

(Page 451.) Whereas it appears by the petition of Thomas Burnham, 
and a certificate of the selectmen of the towns of Ipswich, Topsfleld and 
Middleton accompanj-ing the same, that a repeal of a certain clause in the 
aforementioned act, so far as it respects the using and improving the said 
Burnham's saw-mill, from the last day of April to the first day of June, an- 
nually, provided the same be subjected to the regulation hereinafter men- 
tioned, will not be injurious to the public : 

Sect. 1. Be it enacted, That the future using and improving the said 
Burnham's lower saw-mill, standing on Ipswich River, within the town of 
Ipswich, from the last day of April to the fir^ day of June annually, shall 
be under the directions, regulations and restrictions of the major part of 
the selectmen of the towns of Ipswich, Topsfleld and Middleton, for the 
time being; such directions, regulations and restrictions being made in 
vn'iting, under the hands of the major part of the selectmen aforesaid, 
delivered to the said Burnham, from time to time, as shall be found neces- 
sary. 

Sect. 2. Be it further enacted, That for every omission or violation of 
such directions, regulations or restrictions as aforesaid, the said Burnham 
shall be subjected to such penalties and forfeitures as is incurred by the 
aforementioned act, for using and improving said saw-mill, within the term 
aforesaid, to be sued for, recovered and applied in manner as is prescribed 
In the said act. 

Sect. 3. Be it further enacted, That the sixth clause of the -aforemen- 
tioned act, so far as it respects the using and impro\4ng the said Burnham's 
lower saw-mill, within the term thereiq. mentioned, shall be and hereby is 
repealed.— [March 2S, 1793. 

Ak Act for regulating the Opening of Sluice- Ways in the several Mill-Dams on Eiver 
Meadow Brook, in the Town of Chelmsford and District of Carlisle. 

(Page 452.) Sect. 1. Be it enacted, That the owners of mills on River 
Meadow Brook, so called, in the town of Chelmsford and district of Carlisle, 



APPENDIX. 47 

be and they are hereby permitted to keep the shiice-ways in their respec- 
tive mill-dams shut such part of the time heretofore provided by law for 
keeping them open for the passage of fish up the said brook, as shall, by 
the selectmen of the town of "Chelmsford and the selectmen of the district 
of Carlisle, for the time being, be judged will not prevent the passage of 
the fish up the said stream, and most conducive to the public good : provided, 
the said selectmen of Chelmsford and Carlisle make their determi- 
nation in writing, under their hands, and such determination be kept 
constantly posted up in soTiie conspicuous place at each of the mills on the 
said brook; any law to the contrary notwitstanding. — [^larch 28, 1793. 

1T04. 

As Act in addition to an Act, entitled "An Act to regulate the Catching of Salmon, 
Shad and AJewives, and to prevent Obstructions in Merrimack River, and in the other 
Eivers and Streams running into the same, within this Commonwealth, and for re- 
pealing several Acts heretofore made for that purpose." 

[Refers to March 4, 1790. Additional Acta, 1303, p. 43 ; 1795, p. 35 ; 1804, p. 441 ; 1805, p. 677 ; 1807, p. 66.] 

(Page 511.) Sect. 1. JBe it enacted, That all pecuniary fines or 
forfeitures for the breach of an act passed in the year of our Lord one 
thousand seven hundred and ninety, entitled " An Act to regulate the catch- 
ing salmon, shad and ale wives, and to prevent obstructions in Merrimack 
Eiver, and in the other rivers and streams running into the same within 
this Commonwealth; and for repealing several acts heretofore made for 
that purpose," which by the said act are set at more than four pounds, may 
be recovered by indictment, either in the supreme judicial court or court of 
general sessions of the peace in the county where the ofi"ence shall be com- 
mitted. 

Sect. 2. Be it further enacted, That where any person or persons shaU 
be convicted in either of the said courts, of erecting or continuing any 
obstructions or incumbrance in or across any of the rivers or streams men- 
tioned in the said act, so as to prevent the free passage of the said fish up 
and down the said rivers and streams, the court before whom such convic- 
tion shall be, besides rendering judgment for such fine and cost, shall order 
such obstruction or incumbrance to be removed, and the materials thereof 
to be sold at vendue, to pa}-- the expense of such removal, with the officer's 
fees, and if the same shall not be sufficient, may order the deficiency to be 
raised and levied on the goods and chattels of the person or persons con- 
victed of erecting or continuing the same ; and the warrant for removal 
shall be directed to the sherifl', deputy sheriflf or coroner of the same county, 
as the case may require. 

Sect. 3. Ba it further enacted, That the fines and forfeitures which shall 
be recovered by indictment, pursuant to this act, shall be wholly to the use 
of the coimty in which the recoveiy shall be, towards discharging the ex- 
penses of such county ; anything in the said act whereto this addition is 
made to the contrary notwithstanding.— [Feb. 26, 1794. 



48 INLAND FISHERIES. 



An Act for continuing an Act made in the year of our Lord one thousand seven hundred 
and eighty-nine, entitled " An Act to prevent the Destruction of the Fish called Shad 
and Alewives, in Mistic River, so called, within the Towns of Cambridge, Charlestown 
and Medford, and for repealing all laws heretofore made for that purpose," and also 
for extending the said Act to the Towns of Woburn and Maiden. 

[1804, p. 399; 1808, p. 431 ; 1815, ch. 43.] 

(Page 512.) Sect. 1. Be it enacted, That the said act, in every article and 
clause, matter and thing, shall continue and be in force after the first day of 
March next ; anything in the said act to the contrary notwithstanding. 

Sect. 2. Be it further enacted, That the said act shall extend to the towns 
of Woburn and Maiden, in the same manner as it would have extended in 
case the said towns had been expressly named in the said act. — [Feb. 27, 
1794, 

An Act to prevent the Taking of Fish near the Dam at the Canal at South Hadley Falls, 

in Connecticut River. 

[Additional Act, 1817, ch. 157.] 

(Page 518.) Sect. 1. Be it enacted, That no person or persons, 
at any time hereafter, shall take any salmon or shad within one hundred 
rods of any part of the dam in Connecticut River, near the canal at South 
Hadley, with any net, seine, pot, scoop-net or any other instrument or ma- 
chine whatever ; and if any person or persons shall take or catch any 
salmon or shad, contrary to the true intent and meaning of this act, each 
person so offending shall, for every sucL offence, forfeit and pay a fine of 
four pounds. 

Sect. 2. Be it further enacted, That all nets, seines or other instruments 
or machines used in taking salmon or shad as aforesaid, shall be and hereby 
are forfeited to any person or persons w^ho shall prosecute for the same, 
with costs of suit, to his or their own use, upon complaint or information to 
any justice of the peace in and for the said county of Hampshire, who may 
thereupon issue his warrant to seize the same, to be kept until trial of the 
said complaint or information, which the said justices are hereby fully au- 
thorized to hear and determine. 

Sect. 3. Be it further enacted. That all sums of money forfeited by any 
breach of this act, shall and may be sued for and recovered by action or in- 
formation, with costs of suit, before any justice of the peace within the 
county of Hampshire ; and one half of such fine shall enure to him or them 
who shall sue or prosecute for the same ; the other half thereof for the use 
of the county of Hampshire ; and any person or persons aggrieved at the 
sentence of any justice of the peace, given in pursuance of this act, may ap- 
peal therefrom to the next court of general sessions of the peace to be 
holden in said county. 

Sect. 4. Provided, always. That nothing in this act shall be construed 
to justify the erecting or continuance of the said dam ; but the propriety of 
erecting and continuing the same, whenever this may be called in question, 
shall be determined on the same principles as though this act had never 
been made.— [Feb. 27, 1794. 



APPENDIX. 49 



An Act to prohibit, during the months of December, January and February, the taking 
of Salmon in Merrimack Riv«r, and in the waters running into the same. 

[Addition to Act March 4, 1790. Additional Acts, 1803, p. 43; 18M, p. 441; 1805, p. 577; 1S07, p. 56; 

1846, ch. 192.] 

(Page 35.) Sect. 1. Be it enacted^ That from and after the passing of 
this act, no person shall be allowed to catch any salmon in Merrimack Kiver, 
or in the waters running into the same, during the months of December, 
January and February, and any person who shall offend herein, or who shall 
be found during those months with any salmon which shall have been 
caught contrary to the intent of this act, shall forfeit and pay a sum not 
exceeding twenty dollars nor less than three dollars, to be recovered by 
action of debt to the use of any person who will sue for the same, or by 
indictment, to the use of the county in which the offence shall be committed. 
—[June 20, 1795. 

1706. 

A-N Act to enable the Town of Natick to regulate and order the taking of the Fish called 
Shad and Alewives, within the limits of said Town. 

(Page 53.) Sect. 1. Be it enacted. That from and after the publication 
of this act, it shall and may be lawful for the inhabitants of said town of 
Natick, at their annual meeting in March or April, during the continuance 
of this act, to determine and order in what manner and by whom the said 
fish called shad and alewives may be taken within the limits of said town ; 
and the said inhabitants shall cause a copy of such order, attested by the 
town clerk, to be posted up in some public place iu said town, whereunto 
all persons shall conform with respect to the taking said fish called shad 
and alewives within said town of Natick, on penalty that each and leveiy 
offender against the same shall forfeit and pay the sum of three dollars and 
thirty-three cents, to be sued for and recovered before any court proper to 
try the same ; one moiety to the informer, and the other moiety to the poor 
of said town of Natick. — [February 5, 1796. 

An Act for regulating the Alewive Fishery in the Town of Bridgewater, in the County of 
Plymouth, and for repealing all Laws heretofore made for that purpose- 

[March 7, 1801 ; February 27, 180-2.] 

(Page 105.) Sect. 1. Be it enacted, That all laws heretofore made for 
regulating the alewive fishery in said Bridgewater, be and they hereby 
are repealed; and it shall and may be lawful for the said town of 
Bridgewater, at any legal meeting of the inhabitants of the said town, 
to choose a committee to sell or otherwise dispose of the privilege of 
taking said fish, as the town shall direct, at the several wears in said 
town, or either of them, for the most it will fetch, on the days following, 
viz. t at the wear by the town mills, so called, on Monday and Tuesday of 
each week; at the Great Kiver mills, so called, on Wednesdays and Thurs- 
days in each week; and at the wear by Whitman's mills, so called, on Mon- 
days, Tuesdays and Wednesdays in each week ; and the emoluments arising 
from said privilege shall be appropriated by said town to such purposes 



50 INLAND FISHERIES. 

and uses as the inhabitants thereof shall, in legal town meeting, from time 
to time determine. 

Sect. 2. Be it further enacted. That if the purchaser or purchasers, man- 
ager or managers, or those employed by them, shall presume to take any of 
the said fish at any other time or place in said town than is in this act pro- 
vided, and if any other person or persons whatever, except the purchaser 
or purchasers, manager or managers of said privilege, or those employed 
by them, shall presume to take or catch any of said fish, in any of the rivers 
or streams within the boundaries of said toMTi, he or they so ofi'ending shall 
for each offence forfeit and pay a sum not exceeding thirteen dollars nor 
less than one dollar, at the discretion of the justice before whom the same 
shall be tried. 

Sect. 3. Be it further enacted, That if the said purchaser or purchasers, 
manager or managers of said privilege, shall, when, in his or their power, 
neglect or refuse to supply any person or persons with said fish, who may 
apply therefor, at the rate of twenty-five cents for a hundred of said fish, 
he or they so offending shall, for each offence, forfeit and pay the sum of 
five dollars ; and if any person or persons shall ask, demand and receive 
more than twenty-five cents for a hundred of said fish, and so in that pro- 
portion for a greater or less number, he or they so offending shall, for each 
offence, forfeit and pay the sum of five dollars. 

Sect. 4. Be it further enacted, That the said town of Bridgewater shall, at 
their annual meeting in March or April, choose a committee not exceeding 
nine nor less than three freeholders of said town, who shall be sworn to the 
faithful discharge of the duties enjoined upon them by this act ; and it shall 
be the duty of said committee to cause the natural course of the rivers, 
passage-ways or streams through which the said fish pass, to be kept open 
and without obstruction during the whole time the said fish pass up in said 
rivers, passage-ways and streams in each year, and to remove any such as 
shall be found therein, and to make the said passage-ways wider or deep- 
er, if they or the major part of them shall judge it necessary ; and the said 
committee, or any two of them, paying a reasonable compensation there- 
for, if demanded, shall have authority (in discharging the duties enjoined 
upon them by this act) to go on the lands or meadows of any person through 
which such rivers, passage-ways or streams run, or into any mill, forge or 
other water-works on said rivers or streams, without being considered as 
trespassers ; and any person who shall molest or hinder the said committee, 
or either of them, in the execution of the business of his or their office, or 
shall obstruct any passage-way in the said rivers and streams, otherways 
than maj^ be allowed by the said committee, or a major part of them, he or 
they so offending shall forfeit and pay, for every such offence, a sum not ex- 
ceeding ten dollars nor less than one dollar, at the discretion of the justice 
before whom the same shall be tried : provided, nevertheless, that nothing in 
this act shall be considered as authorizing said committee to injure the 
proprietor of any mill or water-works, further than is necessary in order 
to give the fish a good and sufficient passage up said rivers. 

Sect. 5. Be it further enacted, That it shall be the duty of the said com- 
mittee to prosecute all breaches of this act, and for any two of them to 
seize and detain in their custody any net which may be found in the hands 
of any person using the same contrary to the true intent and meaning of 



APPENDIX. 51 

this act, until the person so oflfending makes satisfaction for his offence, or 
is legally acquitted therefrom. And that each and every person who shall 
be chosen on the committee, pursuant ta this act, shall, within six days 
after his being notified by a constable of such choice, take the following 
oath before some justice of the peace for the county of Plymouth, or the 
clerk of said town of Bridgewater, who is hereby authorized to administer 
the same, viz. : — 

You, A. B., being chosen one of the committee to inspect the alewive fish- 
ery in the town of Bridgewater, for the year ensuing, do solemnly swear 
that you will faithfully discharge the duties of said office, and duly prose- 
cute all breaches of the law respecting said fishery that shall come to your 
knowledge. So help you GOD. 

And that if any person chosen one of the said committee, and notified as 
aforesaid, shall neglect to take the foregoing oath for the space of six days 
after his being so notified, he shall forfeit and pay the sum of five dollars, 
to be recovered by action of debt in any court proper to try the same ; one 
moiety thereof to be applied to the use of the said town of Bridgewater, 
the other moiety to the person or persons who shall sue for the same. 

Sect. 6. Be it further enacted, That all the penalties incurred by any 
breach of this act, shall be recovered by complaint, before any justice of 
the peace within and for the county of Plymouth aforesaid, allowing an ap- 
peal to the court of general sessions of the peace for said county ; and all 
sums of money recovered to the town as forfeited by this act, shall be for 
the support of the poor of the town of Bridgewater aforesaid. And no 
person, by reason of his being one of the said committee or an inhabitant 
of the said town, shall thereby be disqualified from being a witness in any 
prosecutions for a breach of this act. — [Feb. 10, 1797. 

An Act to prevent the Destruction of the Fish called Bass, in the River Parker, in New- 
bury; and in Rowley River; and in the Streams and Waters running into the same, in 
the County of Essex. 

(Page 117.) Sect, 1. Be it enacted, That on and after the first day of 
December next, if any person or persons shall catch, in any manner what- 
ever, any of the fish called bass, in any part of the River Parker, in New- 
bury, or in Rowley River, or in any of the streams or waters running into 
the same, or shall ofier them for sale, between the first day of December 
and the first day of March annually, he or they so oflfending shall forfeit 
and pay one dollar for each of the bass so caught or oflered for sale as 
aforesaid. 

Sect. 2. Be it further enacted, That all fines and penalties which may be 
incurred by a breach of this act, shall be recovered before any justice of the 
peace of the county of Essex, with cost of suit, for the "use and benefit of 
the prosecutor. And it shall be the duty of the fish- wardens of said towns 
of Newbury and Rowley to see that this act is carried into efi"ect; and any 
other person may complain and prosecute for breaches of this act. 

Sect. 3. Be it further enacted, That the inhabitants of the town of Row- 
ley aforesaid, shall, at their annual m-eetings, legally ass-embled, choose one 
or more fish- wardens, whose duty it shall be to see that this act is carried 
into efl'ect, as aforesaid, and who shall be sworn to the faithful discharge of 
that trust, in the same manner as other town officers are sworn. — [Feb. 22, 
1797. 



62 INLAND FISHERIES. 



An Act to regulate the Price of Fish called Alewives, iu the Town of Taunton. 
[Addition to March 19, 1793, repeals the price fixed by said Act.] 

(Page 117.) Sect. 1. Be it enacted, That from and after the passing of 
this act, the selectmen of the town of Taunton, for the time being, together 
Tvith any two justices of the peace in and for the county of Bristol, quorum 
UHUS, be and they are hereby authorized and empowered, from time to time, 
as they shall judge proper, to regulate the price of the fish called alewives, 
taken in Taunton Great Eiver, so called, which price, when so regulated, 
shall be recorded on the book of records of said town by the clerk thereof. 

Sect. 2. Be it further enacted, That if any person, after the passing of 
this act, shall presume to sell such fish at a greater price than may be estab- 
lished, for the time being, as aforesaid, he shall forfeit and pay, to the use 
of said town, for each hundred of such fish so sold, a fine of five dollars ; 
and so in proportion, for a greater or less number, to be sued for and re- 
covered before any justice of the peace in and for said county, or any other 
court proper to try the same, by the town treasurer of said town. And no 
person shall be disqualified from being a witness in any such suit, by reason 
of his or her being an inhabitant of said town. 

Sect. 3. Be it further enacted, That so much of an act passed on the 
nineteenth day of March, in the j^ear of our Lord one thousand seven hun- 
dred and ninety-three, as regulates the price of said fish taken in said river, 
be and the same is hereby repealed. — [Feb. 23^ 1797. 



An Act in addition to and for repealing a certain Clause in an Act passed March the 
twenty-eighth, in the year of our Lord one thousand seven hundred and eighty -eight, 
entitled " An Act to prevent the Destruction of Alewives and other Fish in Ipswich 
River, and to encourage the increase of the same." 

[Refers to March 28, 1738. 1783, p. 191 ; 1788, p. 451 ; 1804, p. 431 ; 1805, p. 524 ; 1806, p. 1 ; 1810, ch. 117 ; 
1812, cb. 127 ; 1SI4, ch. 22.] 

(Page 128.) Sect. 1. Be it enacted, That the future using and improving 
of Andrews' saw-mill, standing on Ipswich River, at Parley's mill-dam, so 
called, within the town of Ipswich, from the last day of April to the first day 
of June annually, shall be under the directions, regulations and restrictions 
of the major part of the selectmen of the towns of Ipswich, Topsfield, Mid- 
dleton and Eeading, for the time being; such directions, regulations and 
restrictions being made in writing, under the hands of the major part of the 
selectmen aforesaid, and delivered to the said Andrews from time to time, 
as shall be found necessary. 

Sect. 2. Be it further enacted. That for every omission or violation of 
such direction, regulations or restrictions as aforesaid, the said Andrews 
shall be subject to such penalties and forfeitures as are incurred by the 
aforementioned act, for using and improving said mill within the term 
aforesaid ; to be sued for, recovered and applied in manner as is prescribed 
in the said act. 

Sect.«8. Beit further enacted. That the sixth clause of the aforemen- 
tioned act, so far as it respects the using and improving the said Andrews' 
saw-mill within the term therein mentioned, shall be and hereby is repealed. 
—[March 7, 1797. 



APPENDIX. 53 



An Act for regulating the taking of Shad, Alewives and other Fish in Neponset River, 
and the several Streams from the Pond called Puncapog and Massopog. 

[Additional Act, Feb. 19, 1799.] 

(Page 148.) Sect. 1. Be it enacted, That there shall be sluice-ways 
through Leeds' dam and McLane's dam, on Neponset River, each eight feet 
in width, and in depth within eighteen inches of the mud-sill ; the former 
within fifteen feet of Leeds' grist-mill floom, and the latter where the 
sluice-way now is. And the owners of all other dams across said River 
Neponset shall make sluice-ways of the width of eight feet, and in depth 
within eighteen inches of the mud-sill ; and all dams on the brook from 
Massapog Pond to Neponset River shall have a sluice-way six feet wide 
and as low as the natural stream ; and all dams on the brook from Punca- 
pog Pond to said Neponset River shall have a sluice-way three feet wide 
and as low as the natural stream. 

Sect. 2. Be it further enacted, That the court of general sessions of the 
peace for the county of Norfolk shall, at their spring sessions, annually 
appoint a committee of three disinterested freeholders, and not inhabitants 
of Stoughton, Sharon, Canton, Dorchester or Milton, who shall be sworn to 
the faithful discharge of their duty, and who shall determine the time when 
the sluice-ways shall be opened and also when they may be shut ; and may 
also, if they think it expedient and not injurious to the passing of said fish, 
direct one-half of any sluice-way or sluice-ways to be shut ; and may open 
any such sluice-way on said rivers and streams, at the expense of the owner, 
provided the owner neglects to do it for the space of twenty-four hours 
after being notified by said committee ; and if upon trial the present depth 
of said sluice-ways shall prove insufficient, may, after hearing the parties, 
order the same to be made deeper : provided, the depth of said sluices shall 
never be lower than twelve inches above the mud-sill. And the said com- 
mittee, or any two of them, may in the execution of their office, when 
necessary, enter on the land or lands adjoining said streams, without being 
considered as trespassers ; and the reasonable expense of said committee 
shall be paid, one half by the owners of the dams on the rivers and streams 
aforesaid, and the other half by the towns of Sharon, Stoughton and 
Canton. 

Sect. 3. Be it further enacted